[Ord. No. 777 §1, 8-21-1996]
A.
The
intent and purpose of this Chapter is to:
1.
Protect the public health, safety and welfare;
2.
Provide for the regulation by the City of the erection, construction,
reconstruction, installation, operation, maintenance, dismantling,
testing, repair and use of cable communications systems in, upon,
along, across, above, over and under or in any manner connected with
the streets or other public ways within the City as it now or in the
future may exist;
3.
Provide for the payment of fees and other valuable considerations
to the City for the use of City streets and other public ways by such
systems as well as to compensate the City for costs associated with
such use;
4.
Provide for the development of cable communication systems as a means
to improve communications between and among and to otherwise serve
the present and future needs of the citizens, government and private
and public institutions, organizations and enterprises located within
the boundaries of the City;
5.
Provide remedies and prescribe penalties for violations of this Chapter;
and
6.
Repeal Ordinance No. 568.
[Ord. No. 777 §2, 8-21-1996]
This Chapter is adopted pursuant to the authority of the City
under the Constitutions and Statutes of the State of Missouri and
the United States of America including, but not limited to, the Cable
Communications Policy Act of 1984, the Cable Consumer Protection and
Competition Act of 1992, rules and regulations established by the
Federal Communications Commission (FCC) and Missouri Statutes authorizing
the control of municipal streets.
[Ord. No. 777 §3, 8-21-1996]
For the purpose of this Chapter, the following words and their
derivations have the meaning defined below. When not inconsistent
with the context, words used in the present tense include the future,
words in the plural number include singular number, and words in the
singular number include plural number. The words "must" or "shall" are mandatory and the word "may" is permissive.
A person who owns or controls, is owned or controlled by,
or is under common ownership with a franchisee.
The lowest priced tier of service that includes the retransmission
of local broadcast signals (as authorized) and public, educational
and government access programming.
The Board of Aldermen of Pine Lawn, Missouri.
A system of antennas, cables, wires, lines, fiber optic cables,
towers, wave guides or other conductors, converters, equipment or
facilities used for distributing video programming to home subscribers
and/or producing, receiving, amplifying, storing, processing or distributing
audio, video, digital or other forms of electrical signals to, from
and between subscribers and other users.
The City of Pine Lawn, Missouri.
The City Clerk of Pine Lawn (or his/her designee).
The City Clerk of Pine Lawn (or his/her designee).
The City Engineer of Pine Lawn (or his/her designee).
The Federal Communications Commission and any legally appointed
or elected successor thereof.
An initial authorization or renewal thereof issued by the
City which authorizes construction and operation of a cable communications
system over, on or under streets, roads and all other public ways,
easements and rights-of-way within all or specified areas of the City
for the purpose of offering cable service or other services to subscribers.
Any person receiving a franchise pursuant to this Chapter
and its lawful successor, transferee or assignee thereof.
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 provision of cable services of a system,
including the studios and other facilities associated therewith, or
by the provision of other communications service 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;
revenues from the sale or carriage of other communications services,
including information services and bypass services; 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 by the United States, the State of Missouri, 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 revenue 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.
An individual, partnership, association, joint stock company,
trust, corporation or governmental entity.
Any real property owned by the City other than a street.
The incorporated areas of Pine Lawn and shall include any
additions thereto by annexation or other legal means.
That level of production facilities, technical performance,
capacity, equipment, components and service equal to that which has
been developed and demonstrated to be more modern than generally accepted
and used in the cable communications industry for comparable areas
of equivalent population, provided that it is economically feasible
in the service area at any given time throughout the term of a franchise.
The surface of and the space above and below any public street,
right-of-way, road, highway, freeway, bridge, lane, path, alley, court,
sidewalk, park, parkway, tunnel, drive, public way, or any easement
now or hereafter held by the City, or dedicated for use by the City,
or used by the general public. No reference herein or in any franchise
to "street" 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 undisputed right and
power to give.
Any person or entity who subscribes to and pays for a service
provided by a franchisee by means of the system.
[Ord. No. 777 §4, 8-21-1996]
No person shall construct or operate a system or any part thereof
within the City unless he/she shall have been granted a franchise
under this Chapter and such franchise shall be in full force and effect
in accordance with its terms and this Chapter.
[Ord. No. 777 §5, 8-21-1996]
A.
The
Board by ordinance may grant a franchise for the right and privilege
of constructing, operating and maintaining in the streets now in existence
and as may be created or established in the City any poles, wires,
cable, underground conduits, manholes and other conductors and fixtures
necessary for the construction, installation, maintenance and operation
of a system within the City. The provisions of this Chapter shall
be incorporated by reference into every such franchise.
B.
The
right to use and occupy said streets for the purposes herein set forth
shall not be exclusive, and the City reserves the right to grant a
similar use of said streets to any other person at any time.
C.
A franchise
does not expressly or implicitly authorize a franchisee to provide
service to or install cables, wires, lines or any other equipment
or facilities upon private property without owner consent (except
use of compatible easements as otherwise provided by law) or to use
publicly or privately owned utility poles or conduits without a separate
agreement with the owners.
[Ord. No. 777 §6, 8-21-1996]
Any franchise granted pursuant to this Chapter shall be applicable
only to such portion of the City as is specifically designated within
said franchise.
[Ord. No. 777 §7, 8-21-1996]
A.
Every
person proposing to construct, install, maintain and/or operate a
system within the City or an area thereof shall present such information
as necessary to assist the City in evaluating the effect of granting
the requested franchise. Such information shall include, but shall
not be limited to:
1.
The capacity of the public right-of-way and related easements to
accommodate the proposed system as well as present and future users.
2.
The extent and frequency of potential disruption of the public rights-of-way
including utility services, existing cable services and vehicular
traffic; the impact on private property rights or the impact on public
convenience.
3.
The financial ability of the applicant to perform, including detailed
financial information about the applicant and the economic assumptions
made by the applicant.
4.
The proposed system design including, but not limited to, the proposed
location of the headend and/or hubs, initial and maximum channel capacity,
proposed bandwidth capacity, and type of equipment required by subscriber
to connect a television to the system.
5.
Such other societal interests as may be relevant to cable communications
franchising including, but not limited to, the ability to provide
adequate public, educational and government access channel capacity,
facilities or financial support, and the applicant's commitment to
local origination programming.
B.
The
person submitting an application shall appear upon request at all
public hearings or committee meetings set by the Board to consider
his/her application.
C.
After complying with the above requirements, the Board, following a public hearing and consideration of the testimony presented at the public hearing, including the person's application and all relevant information as prescribed under Section 645.070(A), shall approve or disapprove the proposed franchise request.
D.
If
the City takes any action in which franchisee is reasonably required
to accommodate the construction, operation or repair of the facilities
of another person that is authorized to use the streets, a franchisee
shall, after written notice thereof, promptly 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 Board of Aldermen 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 streets
if the parties are unable to do so themselves and if the matter is
not governed by a valid contract between the parties.
[Ord. No. 777 §8, 8-21-1996]
A.
A franchise
and the rights, privileges and authority granted thereunder shall
take effect and shall be in force from and after final passage of
the ordinance granting it and shall continue in force and effect for
the term stated therein which shall be not more than twenty (20) years;
provided that not more than sixty (60) days after the effective date
of the ordinance granting a franchise or renewal thereof, the franchisee
shall file with the City Clerk its acceptance of the franchise which
shall have this Chapter incorporated therein by reference. Such acceptance
shall be in writing, in a form reasonably satisfactory to the City,
and duly executed by a corporate officer of the franchisee.
B.
Should a franchisee fail to comply with Section 645.080(A), it shall acquire no rights, privileges or authority under its franchise whatsoever.
C.
A franchise may be renewed upon the terms and conditions set forth in Section 645.080(A). Any application for the renewal of a franchise shall be made in accordance with the substantive and procedural requirements as set forth under 47 U.S.C. Section 546 as amended from time to time.
D.
In
setting forth the duration of a franchise and/or any renewal thereof,
the Board shall consider such factors as it deems appropriate including,
but not be limited to, the extent to which the proposed franchise
will meet the needs of the community during the proposed term of said
franchise, a franchisee's current performance with respect to customer
service issues, technical picture quality, its efforts regarding public,
educational and/or governmental access and local origination programming,
and its service to the community.
[Ord. No. 777 §9, 8-21-1996]
A.
Prior
to a franchise becoming effective and/or renewed, a franchisee must
post with the City a cash security deposit to be used as a security
fund ("Security Fund" or "Fund") to ensure the timely and faithful
performance of all obligations under this Chapter, the franchise and
all other provisions of law, as well as with all orders, permits and
directions of the City pertaining to said franchise, and the payment
by the franchisee of any claims, liens, fees or taxes due the City
that arise by reason of the construction, operation or maintenance
of the system. The Security Fund shall be initially equal to fifteen
thousand dollars ($15,000.00).
B.
The
City Clerk shall place the security deposit in a non-interest-bearing
account.
C.
If
the City determines to exercise its rights to withdraw funds from
the Security Fund, the City may, after ten (10) calendar days' written
notice to the franchisee, withdraw said funds from the Security Fund
unless, within such ten (10) day period, the franchisee objects to
such withdrawal and requests in writing a hearing before the Board.
If the Board, after such hearing, determines that the City is entitled
to withdraw funds from the security deposit, the City may withdraw
said funds from the security deposit. The City shall notify the franchisee
in writing of the amount and date of any withdrawal.
D.
Within
thirty (30) calendar days after written notice of a withdrawal, the
franchisee must deposit a sum of money sufficient to restore the Security
Fund to its original amount. If the franchisee fails to so restore
the fund, the entire fund remaining may be forfeited and/or such failure
may be considered a material breach of this Chapter and may be used
as grounds for revocation of the franchise.
E.
Following
the termination of a franchise, the franchisee is entitled to the
return of that portion of the Security Fund that remains, provided
that there is no outstanding default or other amounts due the City
by the franchisee and, provided further, that said Security Fund shall
not be disbursed until such time as franchisee delivers to the City
Administrator a writing which certifies to the City that:
1.
All plant and equipment which franchisee elects to remove from the
City has been removed in accordance with all applicable laws and ordinances
governing the same, and
2.
Any remaining plant and/or equipment is abandoned, and franchisee
disclaims any ownership interest therein.
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In addition, any amounts due the City shall be withdrawn from
the Security Fund prior to its final release.
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F.
No
action, proceeding or exercise of a right with respect to the Security
Fund will affect any other right the City may have.
[Ord. No. 777 §10, 8-21-1996]
A.
Prior to the issuance by the City of any permits for construction in the streets or public property, a franchisee shall present, or have on file with the City, a faithful performance bond ("performance bond" or "bond"), separate and apart from the Security Fund set forth in Section 645.090 of this Chapter, running to the City with one (1) good and sufficient surety approved by the City ("bonding company"). The franchisee shall maintain said bond throughout the period of initial construction or reconstruction of the system as set forth in the franchise. The bond shall have a penal sum equal to the greater of:
1.
Ten percent (10%) of the aggregate cost which the City Engineer reasonably
estimates will be incurred to complete the proposed construction,
or
2.
Fifty thousand dollars ($50,000.00).
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This bond may be reduced to fifteen thousand dollars ($15,000.00)
upon completion of the upgrade. The bond shall be conditioned upon
the faithful performance of the franchisee and upon the further condition
that in the event the franchisee shall fail to complete the required
construction of the system as set forth in the franchise, there shall
be recoverable, jointly and severally, from the principal and the
surety of the bond any damage or loss suffered by the City as a result
of said construction, including the full amount of any cost of removal
or abandonment of any property of the franchisee, plus an allowance
for reasonable attorneys' fees and costs up to the full amount of
the bond.
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3.
The Bond shall contain the following endorsement:
It is hereby understood and agreed that this bond may not be
canceled nor the intention not to renew be stated until thirty (30)
days after receipt by the City Clerk by certified mail, return receipt
requested, of a written notice of such intent to cancel or not to
renew.
B.
The
bond shall be accompanied by a certificate from the Secretary of State
of Missouri and a certificate from the Missouri Department of Insurance
which authorize the bonding company to conduct business within Missouri.
The bonding company must have attained and shall maintain for the
duration of the bond a rating from A. M. Best's or Standard and Poor's
of not less than "A" as evidence of its solvency. A certificate from
the original issuing company stating that the bond is in effect shall
also be submitted.
C.
The bond and the certificates required in Subsection (C) shall be filed and maintained with the City Clerk.
D.
Upon substantial completion of all construction and/or reconstruction within the streets authorized or required by its franchise, a franchisee may request in writing to the Board that the bond be reduced to an amount of ten thousand dollars ($10,000.00) or two (2) times the estimated cost of the remaining construction, whichever is greater. Upon the completion of all remaining construction and/or reconstruction, the franchisee shall request in writing that the requirement for said bond be terminated. The Board shall, after satisfying itself of the appropriateness of such request, approve the franchisee's request for reduction or cancellation of the required performance bond. Prior to any additional required construction within the streets or public property within the service area, a performance bond as described in Section 645.100(A) shall be submitted and maintained during said additional construction in its original penal sum.
[Ord. No. 777 §11, 8-21-1996]
A.
In
addition to all other rights and powers pertaining to the City by
virtue of any franchise or otherwise, the City reserves the right
to impose liquidated damages, revoke, terminate and cancel any franchise
and all rights and privileges of a franchisee thereunder in the event
that the franchisee:
1.
Defaults in the performance of any of its obligations under its franchise,
this Chapter or under such documents, contracts and other terms and
provisions entered into by and between the City and the franchisee;
2.
Fails to provide or maintain in full force and effect the liability
and indemnification coverage as required herein;
3.
Violates any agreements, orders or rulings of the FCC or any other
regulatory body having jurisdiction over the franchisee relative to
this franchise, including, without limitation, any social contract
now existing or hereafter arising between the franchisee and the FCC,
unless such agreements, orders or rulings are being diligently contested
in good faith by the franchisee in a court of competent jurisdiction;
4.
Fails to receive necessary FCC approvals within the applicable and
appropriate time;
5.
Ceases or fails to provide services for reasons within the control
of the franchisee. A franchisee shall not be declared at fault or
be subject to any sanction under any provision of its franchise or
this Chapter in any case in which performance of any such provision
is prevented for reasons beyond the franchisee's control; or
6.
Attempts to evade any of the provisions of this Chapter or its franchise
agreement or practices any fraud or deceit upon the City.
B.
In
the event that the City believes that a franchisee has not complied
with the terms of its franchise, the City shall notify the franchisee
in writing of the exact nature of the alleged non-compliance.
C.
Franchisee shall have thirty (30) days from receipt of the notice described in Section 645.110(B) to:
1.
Respond to the City contesting the assertion of non-compliance; or
2.
Cure such default; or
3.
In the event that, by the nature of the default, such default cannot
be cured within the thirty (30) day period, the franchisee shall initiate
reasonable steps to remedy such default and notify the City Administrator
of the steps being taken and the projected date that they will be
completed, but in no event shall said default continue for more than
sixty (60) days from the date on which said written notice of non-compliance
was given by the City.
D.
In the event that a franchisee fails to respond to the notice described in Section 645.110(B) pursuant to the procedures set forth in Section 645.110(C), or in the event that the alleged default is not remedied within the applicable time permitted by Section 645.110(C), the City Administrator shall notify the Board of said default. A public meeting shall be held by the Board within thirty (30) days after the above notice is received. The Board shall notify the franchisee, in writing, of the time and place of such meeting and provide the franchisee with an opportunity to be heard.
E.
In
the event the Board, after such meeting, determines that a franchisee
is in default of any provision of its franchise and/or this Chapter,
the Board may:
1.
Impose a penalty in such amount, whether per day, incident or other
measure of violation, of up to three hundred dollars ($300.00) per
day. Payment of said penalty by a franchisee will not relieve a franchisee
of its obligation to meet its franchise requirements;
2.
Commence an action at law for monetary damages or seek other equitable
relief;
3.
Seek specific performance of any provision, which lends itself to
such remedy, as an alternative to damages; or
4.
In the case of a substantial default of a material provision of the
franchise, declare the franchise to be revoked.
F.
A franchisee
shall not be relieved of any of its obligations to comply promptly
with any provision of its franchise by reason of any failure of the
Board to enforce prompt compliance.
G.
In
a situation where a franchise is revoked, in removing its plant and
equipment the franchisee shall obtain the prior written consent of
the City, which will not be unreasonably withheld, prior to commencing
any excavation of any street. Franchisee shall comply with all applicable
laws and ordinances governing excavation of the streets and, if necessary,
shall refill, at its own expense, any excavation that shall be made
by it. Franchisee shall leave all streets and public property in as
good or better condition as prevailed prior to the franchisee's removal
of its plant and equipment without effecting the electrical or telephone
cable wires or attachments. The City shall inspect and approve the
condition of the streets and public property. 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 Subsection and this
Chapter.
H.
In the event of a failure by a franchisee to complete any work required by Section 645.110(G) or any other work required by City law or ordinance within the time as may be established and to the satisfaction of the City, the City may cause such work to be performed and the franchisee shall reimburse the City the cost thereof within thirty (30) days after receipt of an itemized list of such costs. The City shall be permitted to seek legal and equitable relief to enforce the provisions of this Subsection.
I.
Upon
the expiration of the term of the franchise or the revocation of a
franchise, the City may require the franchisee to continue to operate
the system for a period not to exceed six (6) months from the date
of such expiration and/or revocation. The franchisee shall, as trustee
for its successor in interest, continue to operate the system under
the terms and conditions of its franchise and to provide cable service
that may be provided at that time. The City shall be permitted to
seek legal and equitable relief to enforce the provisions of this
Subsection.
J.
The
termination and forfeiture of any franchise shall in no way affect
any of the rights of the City or franchisee under the franchise or
any provision of law.
[Ord. No. 777 §12, 8-21-1996]
A.
A franchise
granted by the City to a franchisee shall be a privilege to be held
for the benefit of the public. A franchisee's rights, title and/or
interest in the franchise and the system constructed pursuant thereto
shall not, whether in whole or in part, be sold, exchanged, transferred
or otherwise disposed of to any person (other than to a wholly owned
affiliate) without the prior written consent of the City, and then
only under such conditions as the City may establish. Such consent
as required by the City shall, however, not be unreasonably withheld
or delayed more than one hundred twenty (120) days from the date the
City receives written notification of any said proposed transfer,
exchange, sale or assignment. Simultaneously with said written notification,
the franchisee and/or the proposed transferee shall deliver to the
City detailed financial information pertaining to the proposed transferee
(including, without limitation, audited or reviewed financial statements),
its technical qualifications and its proposed customer service location.
In addition, the franchisee shall cause the proposed transferee to
deliver such other additional information as the City may request
in writing from time to time within thirty (30) days after the City's
written request therefor. Any failure by the proposed transferee to
deliver to the City any of said information shall constitute a reasonable
basis for the City to withhold said consent. Approval of any such
sale, exchange, transfer or other disposition will in all events be
expressly conditioned upon full compliance with the provisions of
the franchise and this Chapter, and the transferee shall agree in
writing to comply with all provisions of this Chapter and the franchise.
B.
No
change in, transfer of or acquisition by any other party of "control"
of the franchisee shall occur without the prior written consent of
the City, and then only under such conditions as the City may establish.
A change in, transfer of or acquisition by any other party of "control"
has occurred if thirty percent (30%) or more of the voting common
stock in the franchisee is transferred in one (1) or a series of related
transactions. Such consent as required by the City shall, however,
not be unreasonably withheld or delayed more than one hundred twenty
(120) days from the date of written notification to the City. Simultaneously
with said written notification, the franchisee and/or the proposed
transferee shall deliver to the City detailed financial information
pertaining to the proposed transferee (including, without limitation,
audited or reviewed financial statements), its technical qualifications
and its proposed customer service location. In addition, the franchisee
shall cause the proposed transferee to deliver such other additional
information as the City may request in writing from time to time within
thirty (30) days after the City's written request therefor. Any failure
by the proposed transferee to deliver to the City said information
shall constitute a reasonable basis for the City to withhold said
consent. Approval of such change in, transfer of or acquisition of
control will in all events be expressly conditioned upon full compliance
with the provisions of the franchise and this Chapter, and the transferee
shall agree in writing to comply with all provisions of this Chapter
and the franchise.
C.
No
consent shall be required from the City for a franchisee to grant
a mortgage or other lien against the system or any part thereof in
order to secure its indebtedness; provided however, franchisee shall
give the City prior written notice of its intent to grant and/or renew
any mortgage or other lien against the system or any part thereof.
[Ord. No. 777 §13, 8-21-1996]
A.
A franchise
shall, at the option of the City, cease and terminate one hundred
twenty (120) days after the appointment of a receiver, receivers,
trustee or trustees to take over and conduct the business of the franchisee
whether in a receivership, reorganization, bankruptcy or other action
or proceeding, unless such receivership or trusteeship shall have
been vacated prior to the expiration of said one hundred twenty (120)
days or unless:
1.
Such receiver(s) or trustee(s) shall have, within one hundred twenty
(120) days after their election or appointment, fully complied with
all the terms and provisions of this Chapter and the franchise granted
pursuant hereto, and the receiver(s) or trustee(s) within said one
hundred twenty (120) days shall have remedied all defaults under the
franchise; and
2.
Such receiver(s) or trustee(s) shall, within said one hundred twenty
(120) days, execute an agreement duly approved by both a court having
jurisdiction over the premises and the City whereby such receiver(s)
or trustee(s) assume and agree to be bound by each and every term,
provision and limitation of the franchise.
B.
In
the case of a foreclosure or other judicial sale of the plant, property
and equipment of a franchisee or any part thereof, the Board may serve
notice of termination upon the franchisee and the successful bidder
at such sale, in which event the franchise and all rights and privileges
of the franchisee thereunder shall cease and terminate thirty (30)
days after service of such notice unless:
[Ord. No. 777 §14, 8-21-1996]
A.
A franchisee
is subject to and must comply with all local, City, State and Federal
laws, agreements, codes, rules, regulations and orders.
B.
Except
as may be specifically provided in this Chapter, failure of the City,
upon one (1) or more occasions, to exercise a right or to require
compliance or performance under the Chapter shall not be deemed to
constitute a waiver of such right or a waiver of compliance or performance
in the future.
C.
In
addition to the inherent powers of the Board to regulate and control
a franchise under this Chapter, the right is hereby reserved to the
Board to adopt such additional regulations as it shall find necessary
in the exercise of its lawful powers, provided such regulations shall
be reasonable and not in conflict with the rights herein granted.
D.
The
City may also adopt such applicable regulations as may be requested
by a franchisee upon written application of said franchisee.
[Ord. No. 777 §15, 8-21-1996]
A.
Any
system authorized under this Chapter shall:
1.
Be operated and maintained in full compliance with the standards
set forth by the FCC;
2.
Provide for an audio override of all channels during emergencies
or disasters whereby the City and/or a designee of St. Louis County,
approved by the franchisee, may introduce an audio emergency message
on all channels of the system simultaneously. Should the FCC promulgate
regulations requiring a visual override during emergencies, the franchisee
shall comply with said regulations;
3.
Make available to its subscribers a signal scrambling device capable
of rendering cable service inaccessible or accessible, subject to
the subscriber's discretion;
4.
Provide audio services; and
5.
Provide a local access channel and such other mutually agreed to
services necessary to enhance the City's ability to inform its citizens.
B.
A franchisee
shall monitor technological developments in the cable communications
industry and shall, at the request of the City, consult on upgrading
with such state of the art facilities as are required to meet substantial
unfilled needs and interest in commercially available programming,
where the cost of such upgrade may be fully recovered from the incremental
revenue derived from such additional programming.
C.
Any
material change in the system's design from that approved in the franchise
which significantly alters the method by which subscribers access
cable service, reduces the quality or level of service and/or which
is not state of the art shall require the prior approval of the Board.
[Ord. No. 777 §16, 8-21-1996]
A.
A franchisee
shall so construct, operate and modify its system so as to have the
capability to interconnect the same into all adjacent systems.
B.
A franchisee
shall cooperate with the City, any interconnection corporation, regional
interconnection authority, or State or Federal agency that currently
or may hereafter be established for the purpose of interconnecting
systems within or beyond the boundaries of the City in order to facilitate
the provision of public, educational or governmental access services
to the widest possible audience.
[Ord. No. 777 §17, 8-21-1996]
A.
A franchisee
shall design, install and operate its system in full compliance with
the standards set forth by the FCC. Procedures for testing the capacity
of a franchisee's system shall conform with the standards as set forth
in 47 C.F.R. Part 76, Subpart K of the FCC rules and regulations as
amended from time to time.
B.
Whenever
it is necessary to shut off or interrupt service for the purpose of
making repairs, installations or adjustments, a franchisee shall do
so at such times as will cause the least amount of inconvenience to
its customers. Unless such interruption is of short duration or is
unforeseen and immediately necessary, the franchisee shall give reasonable
notice thereof to its customers.
[Ord. No. 777 §18, 8-21-1996]
A.
A franchisee
shall maintain a business office within St. Louis County, which subscribers
may telephone during normal business hours without incurring added
message or toll charges, so that maintenance service shall be promptly
available.
B.
A franchisee
shall adhere to all general operating requirements as set forth as
standards by the FCC under 47 C.F.R. Section 76.309 of the FCC rules
and regulations as amended from time to time.
C.
The
franchisee agrees to establish a plan of customer service and a plan
for addressing customer complaints in a manner consistent with FCC
guidelines. A copy of such plans, together with any amendments thereto,
shall be promptly delivered to the City. Failure to establish any
said plans within thirty (30) days after acceptance of the franchise
or any failure to comply with any said plans shall constitute a material
default hereunder.
[Ord. No. 777 §19, 8-21-1996]
A.
The
City may establish requirements in a franchise with respect to the
designation and use of channel capacity in a franchisee's system for
public, educational or governmental use to the extent allowed under
47 U.S.C. Section 531 as amended from time to time.
B.
A franchisee
shall designate channel capacity for commercial use in accordance
with 47 U.S.C. Section 532 as amended from time to time.
C.
A franchisee
may combine partially used access channels onto a single channel and
may make use of any unused access channels for its own purposes.
D.
A franchisee
shall in any case maintain at least one (1) full channel for shared
access programming which also may be combined with the franchisee's
local origination channel.
E.
Whenever any of the channels required in Subsections (A) or (D) of this Section is in use by persons other than the franchisee during eighty percent (80%) of the week for eight (8) consecutive weeks, the franchisee shall have six (6) months in which to make a new channel available for transmission of access programming which cannot be accommodated on other channels then in use for access programming.
[Ord. No. 777 §20, 8-21-1996]
B.
A franchisee shall provide a full-time interconnection of said channels described in Section 645.200(A) between the franchisee's headend and a technical center approved by the City and St. Louis County.
[Ord. No. 777 §21, 8-21-1996]
A franchisee shall provide, without charge, not less than one
(1) cable outlet and service to each educational and local governmental
facility in the City. Such cable service shall include all cable programming,
except for non-advertiser supported programming, offered on a per-channel
or per-program basis. The installation of such outlets shall not require
special equipment or extraordinary materials. If more than one (1)
outlet is requested at any of the said facilities, the franchisee
shall install the same at the cost of time and material only. In no
event will there be a monthly service charge of said facilities, unless
a request is made for per-channel or per-program services or other
auxiliary services to the extent that a franchisee is allowed under
its contract with the programming suppliers.
[Ord. No. 777 §22, 8-21-1996]
A.
A franchisee
shall have the right to charge and collect compensation from all subscribers
to whom it shall furnish services on its system. The rate schedule
to be charged subscribers shall be kept on file with the City Clerk
at all times and no change in such schedule shall be made without
first filing the changed schedule with the City Clerk thirty (30)
days prior to the effective date. A franchisee must also provide subscribers
with written notification of any such additions or amendments at least
thirty (30) days before the same become effective.
B.
A franchisee,
however, may:
1.
Conduct promotional campaigns in which rates are discounted or waived;
2.
Make special contracts for non-profit, charitable, educational, governmental
and religious organizations;
3.
Offer bulk rate discounts on multiple-unit dwellings, hotels, motels
or similar institutions;
4.
Submit special rates to commercial accounts as approved under applicable
FCC rules and regulations; and
5.
Offer discounts to the elderly and disabled which are applied in
a uniform and consistent manner. Except for those discounts set forth
herein, rates for each type or category of service or product will
be uniform throughout the service area.
C.
The
City may, at its option, regulate such rates as it is authorized to
regulate by Federal law or regulation.
[Ord. No. 777 §23, 8-21-1996]
A.
A franchisee
shall pay to the City a franchisee fee equal to five percent (5%)
of its gross revenues (the "franchise fee"). A franchisee shall file
with the City within forty-five (45) days after the expiration of
each quarter year ending on December thirty-first (31st), March thirty-first
(31st), June thirtieth (30th) and September thirtieth (30th) (or on
such dates as may be provided in its franchise based on franchisee's
fiscal year) a financial statement showing in detail the gross revenues
during the preceding quarter and for the fiscal year to date, together
with a certification from the chief financial officer of franchisee,
certifying that the financial information set forth on such financial
statement is true and accurate in all respects and was prepared in
a manner consistent with all prior financial statements delivered
to the City. Simultaneously with delivery of said financial statement
to the City, franchisee shall pay to the City the franchisee Fee which
is due and payable based upon the amount of gross revenues set forth
in said financial statement.
B.
Within
one hundred twenty (120) days after each fiscal year of franchisee,
franchisee shall deliver to the City a copy of its audited financial
statements including, without limitation, a consolidated and consolidating
balance sheet, income statement and statement of cash flow, containing
an unqualified opinion from its independent auditors, together with
a certificate from the chief financial officer of franchisee certifying
the gross revenues for the prior fiscal year and further certifying
that:
C.
The
City shall have the right to inspect and copy records and to audit
and recompute any amounts determined to be payable under this Chapter,
whether the records are held by the franchisee, an affiliate, or any
other person that collects or receives funds related to the provision
of cable service or other communications services over a franchisee's
system in the City. The franchisee shall be responsible for providing
the records to the City at an office located within the metropolitan
St. Louis area. The records shall be maintained for at least five
(5) years. The franchisee shall provide suitable copying equipment
and shall bear the cost of such copying. The City's audit expenses
shall be borne by the franchisee if the amount of gross revenues determined
pursuant to such audit exceeds the amount reported by franchisee to
the City by more than one percent (1%). Any additional amount determined
to be due to the City as a result of the audit, together with the
cost of the audit and copying as aforesaid, if applicable, 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.
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), as amended from time to time, and shall
not be passed on to subscribers.
A franchisee shall report on a quarterly basis to the City Clerk
the name and address of each and every person providing communications
services over the system for which charges are assessed to subscribers
but not received by the franchisee.
D.
No
acceptance of payment by the City shall operate as a release of a
franchisee's obligation hereunder.
E.
Payments
pursuant to this Section shall not be considered in the nature of
a tax but shall be in addition to any and all taxes now or hereafter
applicable to a franchisee by law.
F.
Any payment not made by the applicable date under Subsection (A) of this Section or under a franchise shall bear interest at three percent (3%) above the average prime rate of major banks in the metropolitan St. Louis area as determined by the City Administrator. The interest on said payments shall be calculated on a per annum basis.
G.
When
a franchise terminates for whatever reason, the franchisee must file
with the City, within ninety (90) calendar days of the date its operations
cease in the City, a report of gross revenues, certified by an independent
certified public accountant, relevant to the system showing the gross
revenues received by the franchisee since the end of the previous
fiscal year. Franchise fees due to the date that the franchisee's
operations ceased must be paid at the same time.
[Ord. No. 777 §24, 8-21-1996]
A.
Each
franchisee shall at all times take reasonable precautions for preventing
failures and accidents that are likely to cause damage or injury to
the public, employees of the franchisee and the City and to public
or private property.
B.
All
lines, equipment and facilities within the service area shall at all
times be kept and maintained in a safe and suitable condition and
in good order and repair.
[Ord. No. 777 §25, 8-21-1996]
A.
All
transmission and distribution structures, lines and equipment erected
by a franchisee within the service area shall be so located as to
cause minimum interference with the proper use of streets and to cause
minimum interference with the rights and reasonable convenience of
property owners who join any of the streets. The system shall be constructed
and operated in compliance with all local, State and national construction
and electrical codes and shall be kept current with new codes. A franchisee
shall install and maintain its wires, cables, fixtures and other equipment
in such manner that they will not interfere with any installations
of the City or of any public utility serving the City. Whenever practical
and possible, the system shall utilize existing poles and easements.
All poles and conduits installed within the service area shall be
made available for attachment or use by the franchisee at just and
reasonable rates applied to public utilities under the formula presently
established in 47 U.S.C. Section 224 as amended from time to time.
B.
Before
any construction is commenced in a street, a franchisee shall obtain
an approved permit from the City Engineer and any other permits as
may be required by law and provide forty-eight (48) hours' notice
prior to start of construction. A franchisee shall not be immune from
any inspection fees associated with obtaining such permits. The City
Engineer shall have the right to inspect all construction or installation
work performed by a franchisee in the City's streets. A franchisee
must restore private property and public thoroughfares to their former
conditions in a manner approved by the City Engineer. If this is not
done within a reasonable amount of time, the City or private property
owners may, after prior notice to the franchisee, cause repairs to
be made at the expense of the franchisee.
C.
In
the maintenance and operation of the system and in the course of new
construction or additions to its facilities, a franchisee shall proceed
so as to cause the least possible inconvenience to the general public.
Any opening or obstruction in the street or public property made by
a franchisee shall be guarded and protected at all times by the placement
of adequate safety devices which shall be clearly designated by warning
lights.
D.
If
at any time during the period of a franchise the City shall lawfully
elect to alter or change the grade of any street, the franchisee,
upon reasonable notice by the City, shall remove, relay and relocate
its poles, wires, cables, underground conduits, manholes and other
fixtures at its own expense.
E.
Any
poles or other fixtures placed in any street by a franchisee shall
be placed in such manner as not to interfere with the usual travel
on such public way.
F.
A franchisee
shall, on the request of any person holding the necessary permits,
temporarily raise or lower its wires to permit the moving of buildings.
The expense of such temporary removal or raising or lowering of wires
shall be paid by the person requesting the same, and the franchisee
shall have the authority to require such payment in advance. A franchisee
shall be given not less than seventy-two (72) hours' (excluding weekends
and holidays) advance notice to arrange for such temporary wire changes.
G.
A franchisee
may trim trees on private property at the franchisee's expense with
prior approval of the property owner. A franchisee may trim trees
on streets at its own expense but only after written notification
to and the approval of the City Engineer. In addition, removal of
trees from public rights-of-way for new construction shall first require
permits from the City Engineer to be obtained by the franchisee.
H.
In
all sections of the service area where cables, wires or other like
facilities of public utilities are placed underground, the franchisee
shall place its cables, wires or other like facilities underground
to the maximum extent that existing technology permits the franchisee
to do so.
I.
A franchisee
shall, at its expense, protect, support, temporarily disconnect, relocate
in the same street or remove from the street any property of the franchisee
when required by the City by reason of traffic conditions, public
safety, street vacation, freeway and street construction, change or
establishment of street grade, installation of sewers, drains, water
pipes, power lines, signal lines and tracks or any other type of structures
or improvements by public agencies; provided however, the franchisee
shall in all such cases have the privilege and be subject to the obligations
to abandon any property of the franchisee in place.
J.
The
City shall have the reasonable right to make additional use for any
public or municipal purpose of any poles or conduits controlled or
maintained exclusively by or for a franchisee in any street provided
such use by the City does not interfere with the use by the franchisee.
The City shall indemnify and hold harmless the franchisee against
and from any and all claims, demands, causes of action, actions, suits,
proceedings, damages, costs or liabilities of every kind and nature
whatsoever arising out of such use of franchisee's poles and/or conduits.
[Ord. No. 777 §26, 8-21-1996]
A.
No
poles or other wire-holding structures shall be erected by a franchisee
without prior approval of the City with regard to location, height,
type and any other pertinent aspect.
B.
No
location of any pole or wire-holding structure of a franchisee shall
be considered a vested interest and such poles or structures shall
be removed and modified by the franchisee at its own expense whenever
the City determines that the public convenience shall be enhanced
thereby.
[Ord. No. 777 §27, 8-21-1996]
A.
Promptly
after franchisee's receipt thereof, franchisee shall deliver to the
City Administrator a copy of:
1.
Any and all judgments, orders or decrees now or hereafter entered
by the FCC and/or any other governmental agency having jurisdiction
over franchisee which affects the system,
2.
Any "social contract" or other similar agreement requiring investment
in the system or regulating the amount of rates which may be charged
to subscribers of the system, and
3.
Any proof of performance filed by the franchisee with the FCC with
respect to the system.
|
|
In addition, any petition, application, communication and/or
any other report now or hereafter submitted by a franchisee to the
FCC, the Securities and Exchange Commission, or any other Federal
or State regulatory commission or agency having jurisdiction over
a franchisee's system, shall be provided to the City upon its written
request.
|
[Ord. No. 777 §28, 8-21-1996]
A.
A franchisee
shall file with the City true and accurate maps or plats of all existing
and proposed installations under its franchise. These maps and plats
shall be in the form directed by the City Engineer and shall be kept
continuously current.
B.
Such maps or plats shall be provided as directed in Section 645.280(A) only after execution of an appropriate confidentiality and non-appropriation agreement between the City and a franchisee.
C.
A franchisee
shall keep on file with the City Clerk a current list of its officers
(with current addresses), bond holders and all shareholders holding
over five percent (5%) of the outstanding stock, showing the amount
of such ownership. Filings shall be deemed current if filed within
the times provided by Federal law for publicly traded corporations.
D.
The
City shall have the right to inspect and copy during normal business
hours at any 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, programs, and disks or
other storage media and other like material which the City deems appropriate
in order to monitor compliance with the terms of this Chapter, a franchise
or applicable law. Specifically excluded from this requirement are
personnel records of the franchisee and contracts for programming
services beyond basic cable service.
The franchisee is responsible for collecting the information
and producing it at the location specified above, and by accepting
a 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 in the event it is in default hereunder,
in which case such 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).
E.
A franchisee
shall maintain separate financial records governing its operations
in the service area.
F.
Access
to a franchisee's records shall not be denied by the franchisee on
the basis that records contain "proprietary" information. Refusal
to provide information required herein to the City shall be grounds
for revocation of a franchise. 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.
G.
The
franchisee shall maintain a file of records open to public inspection
in accordance with applicable FCC rules and regulations.
[Ord. No. 777 §29, 8-21-1996]
A.
A franchisee
shall indemnify, defend, save and hold harmless the City, its officers,
boards and employees from and against any liability for damages and
for any liability or claims resulting from property damage or bodily
injury (including accidental death) which arise out of the franchisee's
construction, operation or maintenance of its system including, but
not limited to, reasonable attorneys' fees and costs.
B.
A franchisee
shall maintain insurance throughout the term of its franchise in the
amounts at least as follows:
|
Workers' Compensation
|
Statutory Limits
| |
|---|---|---|
|
Commercial general liability
|
$1,000,000.00
Combined Single Liability (C.S.L.)
| |
|
Auto liability including coverage on all owned, non-owned and
hired autos
|
$1,000,000.00 per occurrence C.S.L.
| |
|
Umbrella liability
|
$1,000,000.00 per occurrence C.S.L.
|
C.
The
City shall be added as an additional insured to the above advertising
and publishers liability and auto liability insurance coverage.
D.
A franchisee
shall furnish the City with current certificates of insurance evidencing
such coverage.
E.
The
minimum amounts set forth herein for such insurance shall not be construed
to limit the liability of a franchisee to the City under a franchise
issued hereunder to the amounts of such insurance.
F.
Nothing
in this Chapter shall be construed or interpreted as a waiver of the
City's sovereign immunity granted pursuant to Missouri Statutes.
G.
The insurance policies required under Subsection (A) of this Section shall provide that the insurer will give to the City at least thirty (30) days' notice, in writing, in advance of the insurer's intention to cancel, refuse to renew or otherwise terminate a policy, suspend or terminate any coverage, reduce any policy limits or otherwise alter any material terms or conditions of a policy.
[Ord. No. 777 §30, 8-21-1996]
A.
During
the term of a franchise, a franchisee may need to request from the
City modifications of its franchise. Any required modification request
by a franchisee not related to equipment, facilities and service issues
must be submitted to the Board in writing. Upon a written request
by a franchisee for a modification of its franchise, the Board shall
have sixty (60) days within which to render a decision approving or
disapproving the modification request. If such a decision is not rendered
within sixty (60) days of the written request, such request will be
deemed rejected.
B.
If
a modification request is made by a franchisee on matters involving
issues related to the franchisee's equipment, facilities and services,
the Board shall follow all procedures as set forth under 47 U.S.C.
Section 545 as amended from time to time.
[Ord. No. 777 §31, 8-21-1996]
A.
The
City may amend this Chapter to incorporate amendments to Federal law
that are applicable. Any provision herein in conflict with or pre-empted
by Federal law shall be superseded.
B.
The
City reserves the right to further amend this Chapter if it finds
it necessary to protect the public health, safety and welfare. Such
amendments shall be reasonable and not be in substantial conflict
with Federal or State law.
C.
In
the event that the Federal Government or other governmental agency
allows the City to exercise powers which it does not have at the time
a franchise is granted, the City reserves the right to amend the franchise
to exercise those powers.
D.
The
City may inspect all construction or installation work during such
construction or installation, or at any time after completion thereof,
in order to insure compliance with the provisions of this Chapter
and all other governing agreements.
[Ord. No. 777 §32, 8-21-1996]
A franchise shall include a waiver of any objection of the City's
intervention in any suit or proceeding to which a franchisee is a
party.
[Ord. No. 777 §33, 8-21-1996]
A.
The
City Clerk shall have the responsibility for overseeing the day-to-day
administration of this Chapter. The City Clerk shall be empowered
to take all administrative actions on behalf of the City except for
those actions specified in this Chapter that are reserved by the Board.
The City Clerk shall keep the Board apprised of developments with
respect to this Chapter and shall provide the Board with assistance,
advice and recommendations on this Chapter as appropriate.
B.
The
Board has the sole authority to grant franchises, enter into franchise
agreements, modify franchise ordinances, renew franchises, revoke
franchises and authorize the transfer of franchises.
C.
All
filings and reports required of franchisees or applicants pursuant
to this Chapter shall be made with the City Clerk, unless otherwise
specified.
[Ord. No. 777 §34, 8-21-1996]
Minimum public notice of any public meeting relating to amendment
of this Chapter or any franchise granted hereunder shall be by publication
at least once in a newspaper of general circulation in the area at
least five (5) days prior to the meeting, posting at City Hall and
by announcement on the franchisee's local origination channel for
five (5) consecutive days prior to the meeting.
[Ord. No. 777 §35, 8-21-1996]
A franchisee shall acknowledge and adhere to all applicable
Federal and State rules and regulations as they relate to cable communication
systems.
[Ord. No. 777 §36, 8-21-1996]
A.
Unless
approved by the City and to the extent consistent with Federal law,
no franchisee may in its rates or charges, or in the availability
of the services or facilities of its system, or in any other respect
make or grant undue preferences or advantages to any subscriber or
potential subscriber to the system or to any user or potential user
of the system nor subject any such persons to any undue prejudice
or any disadvantage; provided however, franchisees may offer discounts
in order to attract or maintain subscribers, provided that such discounts
are offered on a non-discriminatory basis within the service area.
A franchisee must not deny, delay or otherwise burden service or discriminate
against subscribers or users based on age, race, creed, religion,
color, sex, disability, national origin, marital status or political
affiliation, except for discounts for the elderly and disabled that
are applied in a uniform and consistent manner.
B.
A franchisee
shall not refuse to employ, nor discharge from employment, nor discriminate
against any person in compensation or in terms, conditions or privileges
of employment because of age, race, creed, religion, color, sex, disability,
national origin, marital status or political affiliation.
[Ord. No. 777 §37, 8-21-1996]
A.
No
franchisee or other multichannel video programming distributor shall
enter into or enforce an exclusive contract for the provision of cable
service or other multichannel 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.
B.
No
franchisee or other multichannel 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.
[Ord. No. 744 §0, 5-9-1994]
This Article governs the regulation of rates for basic cable
television service and associated equipment provided within the City.
The City will enforce and interpret this Article in accordance with
Federal and State law, including all Federal Communications Commission
("FCC") regulations governing the regulation of basic service rates
and associated equipment.
[Ord. No. 744 §1, 5-9-1994]
A.
Filings By Cable Operators.
1.
Filings — when made. Within thirty (30) days
after the initial date of regulation of its basic service tier under
this Article (or June 15, 1994, if later), a cable operator must file
its schedule of rates for the basic service tier and associated equipment,
a full description of the services available in the basic service
tier, and all forms prescribed by the FCC to establish initial regulated
rates for the basic service tier and associated equipment, unless
the cable system is eligible for streamlined rate reductions under
FCC regulations and implements the required reduction and provides
written notice thereof in accordance with FCC regulations. In addition,
after initial regulated rates have been established to change regulated
rates for the basic service tier and associated equipment, a cable
operator must file thirty (30) days before the proposed effective
date of the change any proposed new schedule of rates, related description
of the services available in the basic service tier, all forms prescribed
by the FCC, and proof of customer notice as required by the FCC. Rate
changes include decreases, including annual reductions due to decreases
in external costs and quarterly reductions due to decreases in programming
costs resulting from deletion of a channel or channels from the basic
service tier.
2.
Filings — where made. Every rate filing must
be submitted to the cable coordinator (hereinafter "coordinator")
designated by the City. A rate filing shall be considered filed for
review on the date all required forms (correctly completed) and supporting
materials and all required copies are submitted to the coordinator.
If a filing is incomplete, the coordinator may require the cable operator
to supplement the filing and all time deadlines regarding the City's
review of the filing shall be suspended.
3.
Filings — cover letter and copies.
a.
Every rate filing must be accompanied by a covering letter which
states whether the filing concerns existing rates, proposes a rate
increase or proposes a rate decrease. The covering letter must also
identify any elections the cable operator is making regarding applicable
FCC regulations. The covering letter must state whether the cable
operator claims any of the information it has submitted is proprietary.
The covering letter must also contain a brief, narrative description
of any proposed changes in rates or in service, including the precise
amount of any rate change and an explanation of the cause thereof,
and the identification of any added or deleted channels.
b.
An original and fifteen (15) copies of each rate filing (including
all supporting materials) must be submitted.
4.
Filings — standard of review.
a.
Basic service tier rates.
(1)
Permitted charges prior to May 15, 1994. For
service prior to May 15, 1994, the permitted per-channel charge shall
be, at the election of the cable operator made at the time it files
the prescribed forms, either:
(2)
Permitted charges as of May 15, 1994. As of
May 15, 1994, the permitted charge for the basic service tier shall
be, at the election of the cable operator made at the time it files
the prescribed forms to establish initial regulated rates, either:
(a)
A rate determined pursuant to a cost-of-service showing in accordance
with FCC regulations;
(b)
The full reduction rate as defined by the FCC;
(c)
The transition rate as defined by the FCC, if the system is
eligible for transition relief under FCC regulations; or
(d)
A rate based on streamlined rate reduction as defined by the
FCC, if the system is eligible to implement such a rate reduction
under FCC regulations and implements the required reduction and provides
written notice thereof in accordance with FCC regulations. The transition
rate shall be adjusted within thirty (30) days after a determination
by the City that the rate in effect on March 31, 1994, was different
than that permitted under FCC regulations, and any applicable refunds
will be made in accordance with this Article and FCC regulations.
The transition rate or rate based on streamlined rate reduction shall
be subject to change as authorized by the FCC or as requested by the
cable operator in accordance with this Article and FCC regulations.
(3)
Permitted charges after May 15, 1994. After
May 15, 1994, the permitted charge for the basic service tier shall
be, at the election of the cable operator made at the time it files
the prescribed forms, either:
b.
Basic service equipment and installation rates. Rates
for equipment and installations used to receive basic service shall
not exceed charges based on actual costs in accordance with FCC regulations.
Rates for customer equipment and installation and additional connections
shall be unbundled. Equipment charges may include a properly allocated
portion of franchise fees. Monthly usage charges for additional television
receivers are not permitted. A cable operator may sell equipment to
subscribers at prices which recover costs. A cable operator may sell
equipment service contracts for equipment sold to subscribers in accordance
with FCC regulations. Promotional offerings are acceptable, so long
as they are reasonable in scope, not unreasonably discriminatory,
and are not subsidized by cost recovery through increases in equipment
cost elements or increases in programming service rates above the
maximum level prescribed by FCC regulations.
c.
Charges for customer changes. Charges for customer
changes in service tiers effected solely by coded entry on a computer
terminal or similarly simple methods shall be a nominal amount not
exceeding actual costs, except on approval by the City and advance
notice to subscribers the cable operator may establish a higher charge
for changes by subscribers changing service tiers more than two (2)
times in a twelve (12) month period. Other charges for customer changes
in service tiers or equipment shall be based on actual cost. Downgrade
charges that are the same as or less than reasonable upgrade charges
are reasonable. For thirty (30) days after notice of retiering or
rate increases, customers shall be able to change service tiers at
no additional charge.
d.
Burden of proof. The cable operator has the burden
of proving its charges are in accordance with this Article and FCC
regulations.
B.
Initial City Action On Filing. After receiving a rate filing,
the following steps will be taken.
1.
Notice published — public comments received. The City promptly shall publish a notice to the public that a filing
has been received. The notice shall state that the filing is available
for public review, except for those parts withheld as proprietary,
and shall state reasonable time(s) and place(s) for such review. The
notice shall state that interested parties may comment on the filing
and shall establish the time and manner in which interested parties
may submit their comments in light of the date by which the City must
act upon the filing.
2.
Coordinator recommendations. The coordinator shall
submit recommendations for action to the Board of Aldermen within
ten (10) days of receipt of a filing and shall give contemporaneous
notice thereof to the cable operator and the public.
3.
Cable operator response. A cable operator shall
be given an opportunity to respond to public comments and coordinator
recommendations regarding its filing. The coordinator's recommendations
shall establish the time and manner in which the cable operator must
submit its comments in light of the date by which the City must act
upon the filing.
4.
Order issues. Within thirty (30) days of the date of the filing, the Board of Aldermen shall issue a written order which may be in any lawful form. The order shall approve the proposed rates in whole or in part; deny the proposed rates in whole or in part; or state that additional time is required to review the filing because the City is unable to determine, based on the material submitted by the cable operator, that the rates are in accordance with FCC regulations. An order stating additional time is required shall permit the cable operator to cure any deficiency in its filing by submitting a supplementary filing as provided in Subsection (C). If the City disapproves the proposed rates, it may order a reduction or prescribe rates where necessary to bring rates into compliance with this Article and FCC regulations.
5.
Effective date of filing. Unless the Board of Aldermen disapproves the filing or issues an order stating that additional time is required to review the filing within thirty (30) days after the filing date, initial rates will remain effective or proposed rates will become effective. Unless the order or a subsequent order states otherwise, if the City decides more time is required to review the filing, the filing will remain subject to disapproval until after, and no proposed change will go into effect any earlier than, the time for further action by the City provided in Subsection (C)(6) has passed. If the City takes no action within the time provided in Section (C)(6), initial rates shall remain in effect or proposed rates shall take effect, subject to refund if applicable.
6.
Order released and notice published. Notice of the
rate order shall be given to the cable operator. A public notice shall
be published stating that the order has issued and is available for
review at specified reasonable time(s) and place(s).
C.
Further Review After Tolling Order. If the City issues a
tolling order stating that additional time is required to review a
filing, then the following steps shall be taken.
1.
Supplementary filing submitted. The cable operator shall submit a supplementary filing within twenty (20) days from the date the tolling order issues containing corrections, if any, to its filing and any additional information necessary to support the proposed rate, including information the City directs the cable operator to include in the supplementary filing. Supplementary filings must be filed in accordance with Subsection (A)(2).
2.
Notice published — public comments received. The City shall publish a notice to the public that interested parties
may submit additional comments. The notice shall be published after
the date scheduled for submission of any supplementary filing. The
notice shall state that any supplementary filing or additional information
provided by the cable operator will be available for public review
at specified reasonable time(s) and place(s), except for those parts
withheld as proprietary. The notice shall establish the time and manner
in which interested parties must submit their comments in light of
the date by which the City must take further action.
3.
Coordinator recommendations. The coordinator shall
submit any further recommendations to the Board of Aldermen within
twenty (20) days from receipt of the cable operator's supplementary
filing and shall give notice of the recommendations to the cable operator
and the public.
4.
Cable operator response. The cable operator shall
be given an opportunity to respond to public comments and the coordinator's
recommendations regarding its filing. The coordinator's recommendations
shall establish the time and manner in which the cable operator must
submit its comments in light of the date by which the City must act
upon the filing.
5.
Order issues. The Board of Aldermen shall issue
a written order, which may be in any lawful form, approving the proposed
rate in whole or in part; denying the proposed rate in whole or in
part; or allowing the rate to go into effect in whole or in part,
subject to refund, pending further investigation. If the City disapproves
the proposed rate, it may order a reduction or prescribe rates where
necessary to bring rates into compliance with this Article and FCC
regulations. If the Board of Aldermen issues an order allowing the
rates to go into effect subject to refund, it shall also direct the
cable operator to keep an accurate account of all amounts received
by reason of the rates in issue and on whose behalf such amounts were
paid.
6.
Time for order. The order specified in Subsection (C)(5) shall be issued within ninety (90) days after the tolling order for any filing not involving cost-of-service showings. The order shall be issued within one hundred fifty (150) days of the tolling order for any filing involving cost-of-service showings.
7.
Order released and notice published. Notice of
the rate order shall be given to the cable operator. A public notice
shall be published stating that the order has issued and is available
for review at specified reasonable time(s) and place(s) .
8.
Effect of order for further investigation. If the
rate order provides for further investigation, the City shall provide
for appropriate additional opportunities for comment by interested
parties and the cable operator. Notice of any subsequent rate order
completing the investigation shall be given to the cable operator.
A public notice shall be published stating that the order has issued
and is available for review at specified reasonable time(s) and place(s).
9.
Effect of failure to file. If a cable operator fails to file its initial schedule of rates and related materials by the deadline established in Subsection (A)(1), the City shall hold the cable operator in default and proceed to make a determination as to the reasonableness of the cable operator's rates and order appropriate relief without the participation of the cable operator.
D.
Remedies And Refunds.
1.
Orders. The City may order reductions or prescribe
rates as provided by this Article and FCC regulations. The City may
order the cable operator to make refunds, including interest, in accordance
with FCC regulations.
2.
Time for implementing. A cable operator must implement
remedial requirements, including prospective rate reductions and refunds,
within sixty (60) days after the City issues an order mandating a
remedy. The relief must be effective as of the date the order issues.
3.
Filing confirming implementation. Within sixty
(60) days of the date an order mandating a remedy is issued, a cable
operator must file a certification, signed by an authorized representative,
stating: whether the cable operator has complied fully with all provisions
of the order; describing in detail the precise measures taken to implement
the order; and showing how any reductions or refunds (including interest)
were calculated and made.
4.
Deferral. Refund liability will be deferred if required
by FCC regulations.
E.
Small Systems. Small systems shall be regulated in accordance
with FCC regulations.
[Ord. No. 744 §2, 5-9-1994]
A.
Rate Orders Must Be Written. Any rate order shall be in
writing and shall explain the basis for the City's decision.
B.
Notice To And Comment By Cable Operator. Before prescribing
a rate or ordering a reduction or a refund to subscribers, the City
shall ensure the cable operator has had notice and opportunity to
comment on the proposed rate, reduction or refunds.
C.
Any Lawful Action Permitted. The City may take any steps
that it is not prohibited from taking by Federal or State law to protect
the public interest as part of any rate order or by any other means.
By way of illustration and not limitation, it may require refunds,
set rates and impose forfeitures and penalties directly or through
its delegated representatives and enforce refund orders.
D.
Orders Subject To Revision. Every order approving or setting
a rate shall be subject to revision to the extent permitted under
applicable laws and regulations as the same may be amended from time
to time.
E.
Public Information. All filings, comments, recommendations,
responses and orders shall be available for public inspection except
to the extent proprietary material is withheld. Inspection can be
made upon request to the coordinator. All such materials regarding
a particular filing will be made a part of the record before the Board
of Aldermen acts thereon.
F.
No Discrimination. No cable operator shall discriminate
among subscribers or potential subscribers to cable service. The City
shall not prohibit a cable operator from offering reasonable discounts
to senior citizens or to economically disadvantaged groups as defined
by the FCC, so long as such discounts are offered equally to all subscribers
in the franchise area who qualify as a member of the category or reasonable
subcategory.
G.
"A La Carte" Offerings. In reviewing a basic service rate
filing, the City may make an initial decision addressing whether a
collective offering of "a la carte" channels will be treated as unregulated
service or a regulated tier. Such decision must be made within the
first (1st) thirty (30) days established for review of basic service
rates or within sixty (60) days thereafter if a tolling order issues.
The City shall provide notice of its decision to the cable operator
and the public within seven (7) days of making the decision. Such
an initial decision shall toll the time periods within which the City
must decide upon rate filings until seven (7) days after the FCC decides
any interlocutory appeal or, if no appeal is taken, until seven (7)
days after the expiration of the time for filing an interlocutory
appeal. Alternatively, the City may reserve its decision until it
issues its final decision on the rate filing.
[Ord. No. 744 §3, 5-9-1994]
A.
Duty To Respond. A cable operator and any other entity that
has records of revenues or expenses that are or may be allocated to
the cable operator's system must respond to requests for information
from the City. A cable operator is responsible for ensuring that such
other entity responds to the City's requests.
B.
Time For Response. Complete responses to information requests
must be submitted by reasonable deadlines established by the City.
[Ord. No. 744 §4, 5-9-1994]
A.
Cable Operator Must Maintain Books And Records. It is each
cable operator's responsibility to keep books and records of account
so that it can comply fully with this Article and any City order issued
hereunder as well as FCC regulations.
B.
Filings Must Be Complete. It is each cable operator's duty
to submit as complete a filing as possible and knowingly withholding
information or making a filing that is incomplete under applicable
law shall be treated as a violation of this Article.
[Ord. No. 744 §5, 5-9-1994]
A.
The
coordinator shall be responsible for administering the provisions
of this Article. Without limitation and by way of illustration, the
coordinator shall:
1.
Providing notices. Ensure notices are given to the
public and each cable operator as required herein and by FCC regulations.
The cable operator can be provided notice by publication, mail, fax
or any other reasonable means. The public can be provided notice by
publication, posting or any other reasonable means.
2.
Submitting information requests. Submit requests for information to the cable operator and establish deadlines for response to them as provided in Section 645.410. Requests can be provided to the cable operator by mail, fax or any other reasonable means.
3.
Waiving requirements. For good cause, waive any
provision herein or extend any deadline for filing or response except
as to such matters as are mandatory under FCC regulations.
4.
Ruling on confidentiality requests. Rule on any
request for confidentiality.
5.
Preparing recommendations. Prepare recommendations
to the Board of Aldermen. If the recommendation is that any proposed
rate be rejected in whole or in part, the coordinator shall, to the
extent possible, propose a rate and explain the basis for the recommendation
(it may propose that rates remain at existing levels); recommend whether
and on what basis refunds should issue; and notify the cable operator
of its recommendation at the time it is submitted to the Board of
Aldermen.
[Ord. No. 744 §6, 5-9-1994]
To the extent permitted by law, the City may conduct cable regulation
pursuant to this Article jointly with other municipalities in St.
Louis County, Missouri, served by the same cable operator including,
but not limited to, joint certification, acting through a common coordinator,
holding joint proceedings, providing joint notices and conducting
joint reviews of filings. The Board of Aldermen shall retain the final
authority to make determinations hereunder and shall issue separate
orders.
[Ord. No. 744 §7, 5-9-1994]
A.
Except
as prohibited by Federal or State law, a cable operator which violates
this Article or any City order issued hereunder directed specifically
to the cable operator shall be subject to penalties and forfeitures
under the Municipal Code or, if applicable, the City's cable ordinance.
B.
Charging
or filing for approval of a rate that is later determined to be unreasonable
is not in and of itself an evasion of Federal or local rate regulation
and does not provide a basis for assessing penalties or forfeitures.
[Ord. No. 744 §8, 5-9-1994]
A.
Requests For Protection Of Proprietary Information. If this
Article, or any request for information made pursuant hereto, requires
the production of proprietary information, a cable operator must produce
the information. However, at the time the allegedly proprietary information
is submitted, a cable operator may request that specific, identified
portions of its response be treated as confidential and withheld from
public disclosure. The request must state the reason why the information
should be treated as proprietary and the facts that support those
reasons. Requests for confidential treatment, or for inspection of
proprietary information, will be reviewed and decided by the coordinator
in accordance with applicable FCC regulations and applicable State
and local law.
B.
Identification Of Proprietary Information. Information that
the cable operator claims is proprietary must be clearly identified
as such by the cable operator. If it is part of a larger submission,
such as a rate filing, the proprietary information must be segregated
from the remainder of the submission. It must also be clearly marked
so that the City may determine where the proprietary information belongs
within and how it relates to the remainder of the submission.
[Ord. No. 744 §9, 5-9-1994]
Any cable operator may petition for a change in regulatory status
based on development of effective competition, and the City shall
consider such a petition in accordance with FCC regulations. The cable
operator must file an original and fifteen (15) copies of the petition
with the coordinator. If there are multiple cable operators providing
locally regulated service within the City, each operator must file
a separate petition and receive a separate decision from the City.
[Ord. No. 744 §10, 5-9-1994]
A.
A cable
operator shall itemize its bills so that the charges for basic service,
equipment and installation are separately stated. A cable operator
may, but is not required to, identify as a separate line item on each
regular bill of each subscriber in accordance with FCC regulations:
1.
The amount of the total bill assessed as a franchise fee and the
identity of the franchising authority to which the fee is paid;
2.
The amount of the total bill assessed to satisfy any requirements
imposed on the cable operator by the franchise agreement to support
public, educational or governmental channels or the use of such channels;
and
3.
The amount of any other fee, tax, assessment or charge of any kind
imposed by any governmental authority on the transaction between operator
and the subscriber. In order for a governmental fee or assessment
to be separately identified under this Subsection, it must be directly
imposed by a governmental body on a transaction between a subscriber
and an operator. The charge identified on the subscriber's bill as
the total charge for cable service shall include all itemized fees
and costs.
[Ord. No. 744 §11, 5-9-1994]
A cable operator shall not impose a late charge upon any subscriber
who pays for service within fifteen (15) days after the end of the
month in which the service was provided. Late charges shall not exceed
seventy-five hundredths percent (0.75%) per month.
