[HISTORY: Adopted by the Mayor and Council
of the Town of Rock Hall 12-11-2003 by Ord. No. 2003-05. Amendments noted
where applicable.]
This chapter shall be known and may be cited
as the "Rock Hall Cable Television Franchise Ordinance" (hereinafter
"ordinance). The purposes of this chapter are to establish the terms
and conditions under which a cable television or open video system
must operate within the Town of Rock Hall, Maryland (which may hereinafter
be referred to as "Town," "franchising authority," or "grantor");
to provide for the payment of a franchise fee to the Town for use
of public rights-of-way and the costs associated with administering
and regulating the system; and to enhance the Town's authority to
grant a cable television system franchise.
For the purpose of this chapter and any franchise
agreement entered into hereunder, the following terms, phrases, words
and their derivations shall have the meaning given herein. Words used
in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include
the plural number. All capitalized terms used in the definition of
any other term shall have their meaning as otherwise defined in this
section. The words "shall" and "will" are mandatory and "may" is permissive.
Words not defined shall be given their common and ordinary meaning.
Any entity, including a nonprofit community access corporation,
designated by the Town to perform any or all of the following functions:
Each Person who falls into one or more of the following categories:
Each Person having a Controlling Interest in
a Grantee;
Each Person in which a Grantee has a Controlling
Interest; or
Each Person, directly or indirectly, Controlling,
Controlled by, or under common Control with, a Grantee, provided that
Affiliate shall in no event mean any creditor or a Grantee solely
by virtue of its status as a creditor and which is not otherwise an
Affiliate by reason of owning a Controlling Interest in, being owned
by, or being under common ownership, common management, or common
control with, a Grantee.
A binding contract granting a Franchise pursuant to this
Chapter and any amendments, exhibits or appendices thereto, containing
the specific provisions of the Franchise granted, including references,
specifications, requirements and other related matters.
Any service tier, which includes the retransmission or delivery
of local television broadcast signals, origination channels and public,
educational and governmental access Channels, covered by a regular
monthly charge paid by all Subscribers to a particular service tier.
In the event that the definition of Basic Cable Television Service
is amended by an act of the United States Congress, under the Cable
Act or otherwise, or by the FCC, then the definition under this section
shall be amended to conform thereto.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992,
and the Telecommunications Act of 1996, and as may be amended from
time to time.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, transmission and control
equipment that is designed to provide cable television service which
includes video programming and which is provided to multiple Subscribers
within the Town of Rock Hall, but such term does not include:
A facility that serves only to retransmit the
television signals of one or more television broadcast stations;
A facility that serves Subscribers without using
any Public Rights-of-Way;
A facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Cable Act,
except that such facility shall be considered a Cable System if 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; or
Any facilities of any electric utility used
solely for operating its electric utility system.
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A reference to a Cable System in this Chapter
refers to any part of such System, including, without limitation,
Converters. The foregoing definition of Cable System shall not be
deemed to circumscribe or limit the authority of the Town to regulate
or Franchise the activities of any other communications system or
provider of communications services to the full extent permitted by
law.
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A portion of the electromagnetic frequency spectrum that
is used in a Cable System and which is capable of delivering a television
Channel (as defined by the FCC).
Actual working control or ownership of a System in whatever
manner exercised. A rebuttable presumption of the existence of Control
or a Controlling Interest shall arise from the beneficial ownership,
directly or indirectly, by any Person or entity (except underwriters
during the period in which they are offering securities to the public)
of 25% or more of a Cable System or a Franchise under which the System
is operated. A change in the Control or Controlling Interest of any
entity which has Control or a Controlling Interest in a Grantee shall
constitute a change in the Control or Controlling Interest of the
System under the same criteria. Control or Controlling Interest as
used herein may be held simultaneously by more than one Person or
entity.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a Subscriber and, by an appropriate Channel selector, also permits
a Subscriber to view more than 12 Channels delivered by a System at
designated Converter dial locations.
A nonexclusive authorization, or renewal thereof, evidenced
by a written Franchise Agreement, granted pursuant to this Chapter
and applicable law, to construct, operate and maintain a Cable System
within the Public Rights-of-Way to provide Cable Service within all
or a specified area of Town. The term "Franchise" includes the Franchise
Agreement. Any such authorization, in whatever form granted, shall
not mean or include any license or permit required for the privilege
of transacting and carrying on a business within the Town as required
by State or local law, ordinances, or regulations, or for attaching
devices to poles or other structures, whether owned by the Town or
a private entity, or for excavating or performing other work in or
along the Public Rights-of-Way.
The geographic area within the Town of Rock Hall that a Grantee
is authorized to serve by its Franchise.
The fee imposed by the Town pursuant to § 87-27 of this Chapter. The term "Franchise Fee" does not include:
Any tax, fee or assessment of general applicability
(including any such tax, fee, or assessment imposed on both utilities
and cable operators);
Capital costs that are required by a Franchise
Agreement to be incurred by the cable operator for public, educational
or governmental access facilities, or
Requirements or charges incidental to the awarding
or enforcing of a Franchise, including payments for bonds, security
funds, letters of credit, insurance, indemnification, penalties, or
liquidated damages.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
A Person or entity to whom or which a Franchise is granted
by the Town pursuant to this Chapter, along with the lawful successors
or assigns of such Person or entity.
Any and all revenues or consideration of any
kind or nature that constitutes revenue within generally accepted
accounting principles (including without limitation, cash, and credits,)
actually received by a Grantee or by any other operator that is an
operator of a Cable System from the provision of Cable Service over
the Cable System within the Franchise Area. Gross Revenues include,
by way of illustration and not limitation, monthly fees charged to
Subscribers for any basic, optional, premium, per-Channel, per-program
service, or other Cable Service; Installation, disconnection, reconnection
and change-in-service fees; leased access Channel fees; late fees;
revenues from rentals or sales of Converters or other equipment; advertising
revenues; and revenues from home shopping. Gross Revenues shall include
revenues received by an entity other than a Grantee that operates
the Cable System where necessary to prevent evasion or avoidance of
the obligation under this Chapter or a Franchise to pay the Franchise
Fee. Gross Revenues shall not include:
To the extent consistent with generally accepted
accounting principles, actual bad-debt write-offs; or
Any taxes on services furnished by a Grantee
which are imposed directly on any Subscriber or User by the State
of Maryland, the Town or other governmental unit and which are collected
by the Grantee on behalf of said governmental unit. A Franchise Fee
is not such a tax.
Gross Revenue includes an allocated portion
of all revenue derived by a Grantee from local advertising, home shopping,
or other similar services. The allocation shall be based on the number
of Subscribers in the Franchise Area divided by the total number of
Subscribers on the System. Gross Revenues shall include any revenue
received by a Grantee through any means which has the effect of avoiding
the payment of Franchise Fees to the Franchise Authority which it
is lawfully entitled to receive under the terms of this Chapter.
A Grantee who has not previously been granted a Franchise
by the Town.
All areas in the Town of Rock Hall that will receive Cable
Service initially, as set forth in any Franchise Agreement.
The connection of the System to Subscribers' terminals, and
the provision of Cable Service.
As applied to a Grantee, those hours during which similar
businesses in the Town of Rock Hall are open to serve customers. In
all cases, Normal Business Hours shall include some evening hours
at least one night per week, and some weekend hours.
Those service conditions which are within the control of
a Grantee. Those conditions which are not within the control of a
Grantee include but are not limited to natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather
conditions. Conditions which are ordinarily within the control of
the Grantee include but are not limited to special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and
maintenance or upgrade of the Cable System.
The complete loss of picture, sound or both on multiple Channels
from a common problem which affects multiple customers on the System.
Any natural person or any partnership, association, joint
stock company, joint venture, domestic or foreign corporation, stock
or nonstock corporation, limited liability company, professional limited
liability company, or organization of any kind, or any lawful successor
thereto or transferee thereof. Such term does not include the Town.
The surface of and all rights-of-way and the space above
and below any public Street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the Town for the purpose of public
travel and shall include other similar easements or rights-of-way
as shall be now held or hereafter held by the Town which shall, within
their proper use and meaning, entitle a Grantee to the use thereof
for the purposes of installing poles, wires, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a Cable
System.
The loss of either picture or sound or both, on one or more
Channels, affecting at least one Subscriber on the System.
The State of Maryland.
Any Person lawfully receiving Cable Service provided by a
Grantee by means of or in connection with the Cable System and who
pays the charges therefore, except such Persons or entities authorized
to receive Cable Service without charge as provided for in a Franchise
Agreement.
The Mayor and Council of the Town of Rock Hall, Maryland,
and any agency or department thereof. The Town may also be referenced
as "Franchising Authority" or "Grantor."
The administrative head of the Town, or his designee.
A Person utilizing a Cable Television System Channel for
purposes of production or transmission of material to Subscribers,
as contrasted with receipt thereof in a Subscriber capacity.
It shall be unlawful for any person to construct,
install or operate a cable television system in the Town of Rock Hall
within any public right-of-way without a properly granted franchise
issued pursuant to the provisions of this chapter.
Any franchise granted by the Town shall grant
to a grantee the nonexclusive right and privilege to erect, construct,
operate and maintain in, upon, and along, across, above, over and
under the public rights-of-way now in existence and as may be created
or established during a franchise term; any poles, wires, cable, underground
conduits, manholes, and other television conductors and fixtures necessary
for the maintenance and operation of a cable system to provide cable
service within a franchise area. A franchise granted by the Town does
not expressly or implicitly authorize a grantee to provide service
to, or install a cable system on, private property without the owner's
consent (except for use of compatible easements pursuant to the cable
act, or to use publicly or privately owned conduits or any other public
property without a separate agreement with the owners thereof).
A.
Upon adoption of any franchise agreement and execution
thereof by a grantee, the grantee agrees to be bound by all the terms
and conditions contained in this chapter and any amendments thereto,
unless otherwise provided in the franchise agreement.
B.
Any grantee also agrees to provide all services specifically
set forth in its application, if any, and to provide cable service
within the confines of its franchise area; and by its acceptance of
a franchise, a grantee specifically grants and agrees that its application
is thereby incorporated by reference and made a part of the franchise.
In the event of a conflict between the application and the provisions
of this chapter, that provision which provides the greatest benefit
to the Town, in the opinion of the Town, shall prevail.
Any franchise to provide cable service shall
be valid within all the territorial limits of the Town of Rock Hall,
unless otherwise specified in the franchise agreement.
A.
A franchise and the rights, privileges and authority
granted shall take effect and be in force as set forth in the franchise
agreement and shall continue in force and effect for a term of no
longer than 10 years. Such franchise shall be nonexclusive and revocable.
B.
Within 15 days after the Town's decision to grant
a franchise, the intended grantee shall file with the Town its unconditional
acceptance of the franchise and its promise to comply with and abide
by all its provisions, terms and conditions.
Franchise renewals shall be conducted in accordance
with applicable law, including but not necessarily limited to the
Cable Act, as amended. Grantor and grantee, by mutual consent, may
enter into renewal negotiations at any time during the term of the
franchise.
A.
In accepting a franchise, a grantee shall acknowledge
that its rights thereunder are subject to the police powers of the
Town to adopt and enforce general public local laws pursuant to applicable
law and necessary to the health, safety and welfare of the public.
Grantee shall agree to comply with all applicable laws, ordinances,
policies, codes, rules and regulations enacted or adopted by the Town
pursuant to such power.
B.
Any conflict between the provisions of this chapter
and any other present or future lawful exercise of the Town's police
powers shall be resolved in favor of the latter, except that any such
exercise that is not of general application in the Town of Rock Hall,
or applies exclusively to the grantee or cable television systems,
which contains provisions inconsistent with the grantee's franchise
agreement, shall prevail only if upon such exercise the Town finds
an emergency exists constituting a danger to health, safety, property
or general welfare or such exercise is mandated by law.
C.
In the event that the state or federal government
discontinues preemption in any area of cable communications over which
it currently exercises jurisdiction in such manner as to expand rather
than limit municipal regulatory authority, the Town may, if it so
elects, adopt rules and regulations in these areas to the extent permitted
by law.
The Town shall have the right, during the term
of a franchise, to install and maintain free of charge upon the poles
of a grantee any wire or pole fixtures that do not unreasonably interfere
with the cable television system operations of the grantee. The Town
shall indemnify and hold harmless, to the extent permitted by law,
the grantee from any claim that might arise due to or as a result
of such usage.
Costs to be borne by an initial grantee shall
include but shall not be limited to any reasonable charges incidental
to the awarding or enforcing of an initial grantee's franchise, all
costs of publications of notices prior to any public meeting provided
for pursuant to this chapter, and any costs not covered by application
fees but incurred by the Town in its study, preparation of proposal
documents, evaluation of all applications, and examinations of the
applicants' qualifications. Any payments made to the Town pursuant
to this section shall not be considered franchise fees.
All notices from a grantee to the Town pursuant
to this chapter shall be to the Town Manager's office. Every grantee
shall maintain with the Town, throughout the term of a franchise,
an address for service of notices by mail. A grantee shall maintain
a central office to address any issues relating to operating under
this chapter.
A.
Within 15 days after the award of a franchise, a grantee
shall deposit with the Town an irrevocable letter of credit from a
financial institution, a security deposit, or a surety bond, in form
and amounts as set forth in the franchise agreement. The Town Attorney
shall approve the form and content of such letter of credit, security
deposit, or surety bond. These instruments shall be used to insure
the faithful performance of a grantee of all provisions of this chapter
and the franchise, and compliance with all orders, permits and directions
of any agency, commission, board, department, division, or office
of the Town having jurisdiction over its acts or defaults under this
chapter and the franchise, and the payment by a grantee of any claims,
liens, and taxes due the Town which arise by reason of the construction,
operation or maintenance of a cable system.
B.
The letter of credit, security deposit, or surety
bond shall be maintained at the amount set forth in the franchise
agreement for the entire term of a franchise, even if amounts have
to be withdrawn pursuant to this chapter or the franchise agreement.
C.
If a grantee fails to pay to the Town any compensation
within the time fixed under this chapter or in the franchise agreement,
or fails to repay the Town within 30 days, any damages, costs or expenses
which the Town is compelled to pay by reason of any act or default
of the grantee in connection with this chapter or a franchise, or
fails, after 30 days' notice of such failure by the Town, to comply
with any material provision of this chapter or the franchise which
the Town reasonably determines can be remedied by demand on the letter
of credit, security deposit, or surety bond, the Town may immediately
request payment of the amount thereof, with interest and any penalties,
from the letter of credit, surety bond or security deposit. Upon such
request for payment, the Town shall notify the grantee of the amount
and date thereof.
D.
The rights reserved to the Town with respect to the
letter of credit, security deposit or surety bond are in addition
to all other rights of the Town, whether reserved by this chapter
or authorized by law, and no action, proceeding or exercise of a right
with respect to such letter of credit, surety bond or security deposit
shall affect any other right the Town may have.
E.
A letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit, security
deposit or surety bond may not be canceled by the surety, nor the
intention not to renew be stated by the surety, until 30 days after
receipt by the Mayor and Council, by registered mail, of a written
notice of such intention to cancel or not to renew." Upon receipt
of the thirty-day notice, this shall be construed as a default granting
the Town the right to call on the surety for either the security deposit,
letter of credit or surety bond, unless a grantee obtains a substitute
letter of credit, security deposit or surety bond.
F.
The Town may at any time during the term of the franchise,
waive their requirement that the grantee maintain a letter of credit,
surety bond or security deposit. The invitation to waive the requirement
can be initiated by the Town or a grantee.
A.
Within 30 days after the award of a franchise to an
initial grantee, such grantee shall file with the Town a performance
bond in the amount of not less than 50% of costs to install the system
contained in the new application in favor of the Town. This bond shall
be maintained throughout the construction period and until such time
as determined by the Town, unless otherwise specified in a franchise
agreement.
B.
If a grantee fails to comply with any law, ordinance
or resolution governing a franchise, or fails to well and truly observe,
fulfill and perform each term and condition of the franchise, as it
relates to the conditions relative to the construction or upgrade
of a cable system, there shall be recoverable, jointly and severally,
from the principal and surety of the bond, any damages or loss suffered
by the Town as a result, including the full amount of any compensation,
indemnification, or cost of removal or abandonment of any property
of the grantee plus a reasonable allowance for attorneys' fees, including
the Town's legal staff, and costs, up to the full amount of the bond.
C.
The Town shall, upon completion of construction of
the initial service area, waive or reduce the requirement of a grantee
to maintain the bond. However, the Town may require a performance
bond to be posted by the grantee for any construction subsequent to
the completion of the initial service areas, in a reasonable amount
and upon such terms as determined jointly by the Town and grantee.
D.
The bond shall contain the following endorsement:
"It is hereby understood and agreed that this bond may not be canceled
by the surety, nor the intention not to renew be stated by the surety,
until 30 days after receipt by the Mayor and Council, by registered
mail, of a written notice of such intent to cancel and not to renew."
Upon receipt of a thirty-day notice, this shall be construed as default
granting the Town the right to call in the bond.
E.
The Town may, at any time during the term of a franchise,
waive the requirement that the grantee maintain a performance bond.
The invitation to waive the requirement can be initiated by the Town
or grantee.
A grantee shall carry insurance in such forms
and in such companies as specified in the franchise agreement.
A.
The Town shall not at any time be liable for injury
or damage occurring to any person or property from any cause whatsoever
arising out of the construction, maintenance, repair, use, operation,
condition or dismantling of a grantee's cable system or due, in whole
or in part, to the act or omission of any person other than the Town
or those persons for which the Town is legally liable as a matter
of law.
B.
A grantee, under any franchise operated pursuant to
this chapter, shall agree to indemnify, hold harmless, release and
defend the Town, its officers, boards, commissions, agents and employees
from and against any and all lawsuits, claims, causes of action, actions,
liability, demands, damages, disability, losses, expenses, including
reasonable attorneys' fees and costs or liabilities of any nature
that may be asserted by any person resulting or in any manner arising
from the action or inaction of the grantee in constructing, operating,
maintaining, repairing or removing the cable system, in carrying on
grantee's business or operations in the Town or in exercising or failing
to exercise any right or privilege granted by the franchise. This
indemnity shall apply, without limitation, to any action or cause
of action for invasion of privacy, defamation, antitrust, errors and
omissions, theft, fire, violation or infringement of any copyright,
trademark, trade names, service mark or patent, or any other right
of any person, firm or corporation, whether or not any act or omission
complained of is authorized, allowed or prohibited by this chapter
or any franchise agreement, but shall not include any claim or action
arising, in whole or in part, out of the actions or omissions of Town
officers, employees or agents or related to any Town programming or
other access programming for which the grantee is not legally responsible.
C.
The Town shall promptly notify a grantee of any claims
subject to indemnification by the grantee and shall cooperate with
all reasonable requests by a grantee for information, documents, testimony
or other assistance appropriate to a resolution of such claims. A
grantee shall have full responsibility for and control of any action
or undertaking directed at the resolution of such claims.
A.
A grantee shall not deny service, deny access, or
otherwise discriminate against subscribers, channel users, or general
citizens on the basis of race, color, religion, national origin, disability
or gender. A grantee shall comply at all times with all other applicable
federal, state and local laws and regulations and all executive and
administrative orders relating to nondiscrimination which are hereby
incorporated and made part of this chapter by reference.
B.
A grantee shall strictly adhere to the equal employment
opportunity requirements of the FCC and state and local regulations,
as amended from time to time.
C.
A grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
A grantee is required to make all cable television
system services available to all residential dwellings throughout
the franchise area which meet the minimum housing density requirements
set forth herein and/or in the franchise agreement.
Minimum public notice of any public meeting
relating to a franchise shall be made as prescribed by the Town.
A grantee shall provide cable service throughout
its entire franchise area pursuant to the provisions of this chapter
and its franchise agreement and shall keep a record for at least three
years of all requests for service received by the grantee. Upon reasonable
notice, this record shall be available for inspection by the Town
at the local office of the grantee during normal business hours.
A.
New construction timetable. The system construction
timetable in an initial service area shall be established in the franchise
agreement.
B.
Line extensions. Unless otherwise provided for in
the franchise agreement:
(1)
In areas of the franchise not included in the initial
service areas, a grantee shall be required to extend its system pursuant
to the following requirements:
(a)
No customer shall be refused service arbitrarily.
Grantee is hereby authorized to extend the cable system as necessary
within the Town. To expedite the process of extending the cable system
into a new subdivision, the Town will forward to a grantee an approved
engineering plan of each project. Subject to the density requirements
(25 dwelling units per street mile as measured from the existing system
and 25 dwelling units per street mile within the new subdivision),
the grantee shall commence the design and construction process upon
receipt of the final engineering plan. Upon notification from the
Town that the first home in the project has been approved for a building
permit, a grantee shall have a maximum of three months to complete
the construction/activation process within the project phase; provided,
however, that the three-month period shall be reasonably extended
to accommodate delays caused by circumstances beyond the control of
the grantee.
(b)
A grantee must extend and make cable service
available to every dwelling unit in all unserved, developing areas
having at least 25 dwelling units per street mile, as measured from
the existing system, and shall extend its system following established
utility easements.
(c)
A grantee must extend and make cable service
available to any isolated resident outside the initial service area
requesting connection at the standard connection charge, if the connection
from the existing cable plant to the isolated resident would require
no more than a standard one-hundred-fifty-foot drop line, unless an
alternative standard is provided for in the franchise agreement.
(2)
Early extension. In areas not meeting the requirements
for mandatory extension of service, a grantee shall provide, upon
the request of a potential subscriber desiring service, an estimate
of the costs required to extend service to the subscriber. The grantee
shall then extend service upon request of the potential subscriber.
A grantee may require advance payment. The amount paid by subscribers
for early extensions may be nonrefundable.
(3)
New development underground. In cases of new construction
or property development where utilities are to be placed underground,
the developer or property owner shall give a grantee reasonable notice,
but not less than 30 days' notice, of such construction or development,
and of the particular date on which open trenching will be available
for the grantee's installation of conduit, pedestals and/or vaults,
and laterals to be provided at the grantee's expense. A grantee may
also provide specifications as needed for trenching. Costs of trenching
and easements required to bring service to the development shall be
borne by the developer or property owner; except that, if a grantee
fails to install its conduit, pedestals and/or vaults, and laterals
within five 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-day period, the
cost of new trenching is to be borne by the grantee.
C.
Special agreements. Nothing herein shall be construed
to prevent a grantee from serving areas not covered under this section
upon agreement with developers, property owners, or residents, provided
that franchise fees are paid to the Town on those gross revenues.
(1)
A grantee, in its application, may propose a line
extension policy which will result in serving more residents of the
Town of Rock Hall than as required in this section, in which case
the grantee's line extension policy shall be incorporated into a franchise
agreement and will be binding on the grantee.
A.
Compliance with construction and technical standards.
A grantee shall construct, install, operate and maintain its system
in a manner consistent with all laws, ordinances, construction standards,
governmental requirements, and FCC technical standards, as the same
may be amended from time to time. In addition, a grantee shall provide
the Town, upon request, with a written report of the results of the
grantee's periodic proof of performance tests conducted pursuant to
FCC standards and requirements.
B.
Additional specifications:
(1)
Construction, installation and maintenance of a cable
television system shall be performed in an orderly and workmanlike
manner. All cables and wires shall be installed, where possible, parallel
with electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(2)
A grantee shall at all times comply with applicable
provisions of the following:
(3)
In any event, a system shall not endanger or interfere
with the safety of persons or property in a franchise area or other
areas where a grantee may have equipment located.
(4)
Any antenna structure used in the system shall comply
with construction, marking, and lighting of an antenna structure required
by the United States Department of Transportation.
(5)
All working facilities and conditions used during
construction, installation and maintenance of the cable television
system shall comply with the applicable standards of the Occupational
Safety and Health Administration.
(6)
RF leakage shall be checked at reception locations
for emergency radio services to prove no interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed
aeronautical navigation radio sites to prove no interference to airborne
navigational reception in the normal flight patterns. FCC rules and
regulations shall govern.
(7)
A grantee shall maintain equipment capable of providing
standby power for headend and transport system for a minimum of two
hours, unless otherwise provided for in the franchise agreement.
(8)
In all areas of the Town of Rock Hall where the cables,
wires, and other like facilities of public utilities are placed underground,
a grantee shall place its cables, wires, or other like facilities
underground. When all other public utilities relocate their facilities
from pole to underground, a grantee must concurrently do so.
C.
Repeated and verified failure to maintain specified
technical standards shall constitute a material franchise violation.
A.
For the purpose of operating and maintaining a cable
system in the franchise area, the grantee may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under, upon,
across and along the streets and public ways within the franchise
area such wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, pedestals, attachments and other property and equipment
as are necessary to the operation of the cable system; provided, however,
that the grantee complies with all design, construction, safety, and
performance provisions contained in this chapter, the franchise agreement,
and other applicable local ordinances.
B.
Interference with persons and improvements. A grantee's
system, poles, wires and appurtenances shall be located, erected and
maintained so that none of its facilities shall endanger or interfere
with the lives of persons or interfere with the rights or reasonable
convenience of property owners who adjoin any of the streets and public
ways, or interfere with any improvements the Town may deem proper
to make, or unnecessarily hinder or obstruct the free use of the streets,
alleys, bridges, easements or public property.
C.
Before commencing construction in, above, over, under,
across, through or in any way connected with the streets, public ways
or public places of the Town of Rock Hall (other than such public
areas not under the Town's control), the grantee shall obtain all
required permits which grantee reasonably can foresee to be necessary
in the reasonable future (at the fees regularly charged therefor),
including but not limited to the written approval of the Town, which
approval shall not be unreasonably withheld or delayed. The Town may
designate the location, manner and time of any construction within
the roads and rights-of-way over which the Town has jurisdiction.
D.
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing, including
the surface of streets and alleys, caused by grantee or any person
acting on its behalf, a grantee shall, at its own cost and expense
and in a manner and within a time-frame approved by the Town, replace
and restore all paving, sidewalk, driveway, landscaping, or surface
disturbed to a condition comparable to that before the work was commenced
and in accordance with standards for such work set by the Town.
E.
Grantee or any other person acting on its behalf shall not open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining approval to do so in the manner prescribed in Subsections C and D of this section, and obtaining all required street opening or other permits. Grantee shall be fully responsible for the actions and activities of its agents, employees and subcontractors. Grantee shall immediately respond to and rectify any complaint resulting from an activity of any subcontractor, agent, or employee.
F.
A grantee shall restore any street it has disturbed
and shall, at its own cost and expense, restore and replace any other
property disturbed, damaged or in any way injured by or on account
of its activities to a condition comparable to the condition that
said property was in immediately prior to the disturbance, damage
or injury.
G.
A grantee shall, at its own cost and expense, protect,
support, temporarily disconnect, relocate in the same street or other
public place, or remove from said street or other public place, any
of its property when required to do so by the Town because of street
or other public excavation, construction, repair, regrading or grading,
traffic conditions, installation of sewers, drains, or water pipes,
Town-owned power or signal lines, tracks, vacation or relocation of
streets or any other type of structure or improvement of a public
agency, or any other type of improvement necessary for the public
health, safety or welfare.
H.
Grantee shall have the authority to trim trees on
public property at its own expense as may be necessary to protect
its wire and facilities, subject to the direction of the Town or other
appropriate governmental authority.
I.
Erection, removal and common uses of poles:
(1)
No poles or other wire-holding structures shall be
erected by a grantee without prior approval of the Town with regard
to location, height, types, and any other pertinent aspect. However,
no location of any pole or wire-holding structure of a grantee shall
be a vested interest and such poles or structures shall be removed
or modified by the grantee at its own expense whenever the Town determines
that the public convenience would be enhanced thereby.
(2)
Where poles or other wire-holding structures already
existing for use in serving the Town are available for use by a grantee,
but grantee does not make arrangements for such use or an agreement
thereof cannot be reached, the Town may require the grantee to use
such poles and structures if it determines that the public convenience
would be enhanced thereby, the use of such poles and structures is
technically feasible, and the terms of the use available to the grantee
are just and reasonable.
(3)
In the absence of any governing federal or state statute,
where a public utility serving the Town desires to make use of the
poles or other wire-holding structures of a grantee, but agreement
thereof with the grantee cannot be reached, the Town may require the
grantee to permit such use for such consideration and upon such terms
as the Town shall determine to be just and reasonable, if the Town
determines that the use would enhance the public convenience and would
not unduly interfere with the grantee's operations.
J.
Relocation of the facilities. If at any time during
the term of a franchise the Town shall lawfully elect to alter or
change the grade of any street, alley or other public ways and shall
require all of the respective public utilities impacted by such alteration
to remove or relocate their facilities, a grantee, upon reasonable
notice by the Town, shall remove or relocate as necessary its poles,
wires, cables, underground conduits, manholes and other fixtures at
its own expense unless the utilities are compensated, in which case
the grantee shall be similarly compensated.
K.
Cooperation with building movers. A grantee shall,
on the request of any person holding a building or moving permit issued
by the Town, temporarily raise or lower its wires to permit the moving
of buildings. The person making the request shall pay the expense
of such temporary removal, raising or lowering of wires, and a grantee
shall have the authority to require such payment in advance. A grantee
shall be given not less than seven days' advance notice to arrange
for such temporary wire changes.
L.
The operations and activities of a grantee that impact streets, sidewalks and other public ways are further subject to the provisions of Chapter 196 of the Town Code, and any conflict between the provisions of this chapter and Chapter 196 shall be resolved in favor of the best interests of the Town.
A.
A grantee shall put, keep and maintain all parts of
a cable system in good condition throughout the term of a franchise.
B.
Upon the reasonable request for service by any person
located within a grantee's franchise area, the grantee shall, within
60 days, furnish the requested service to such person within the terms
of the line extension policy. A request for service shall be unreasonable
for the purpose of this subsection if no trunk line installation capable
of servicing that person's block has as yet been installed.
C.
A grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest
time possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
D.
A grantee shall not allow its cable system or other
operations to interfere with the television reception of subscribers
or persons not served by the grantee, nor shall a system interfere
with, obstruct or hinder in any manner the operation of the various
utilities serving the residents within the confines of the Town of
Rock Hall, nor shall other utilities interfere with a grantee's system.
E.
A grantee shall have knowledgeable, qualified grantee
representatives available to respond to customer telephone inquiries
24 hours per day and seven days per week. A staffed answering service,
or an automated response system, shall be considered a qualified grantee
representative during evening and weekend hours.
F.
Under normal operating conditions, telephone answer
time, including wait time and the time required to transfer the call,
shall not exceed 30 seconds. This standard shall be met no less than
90% of the time as measured on a quarterly basis.
G.
Under normal operating conditions, a customer will
receive a busy signal less than 3% of the total time that the grantee's
office is open for business. This standard shall be met no less than
90% of the time as measured on a quarterly basis.
H.
Standard installations will be performed within seven
business days after an order has been placed. A standard installation
is one that is within 150 feet of an existing system.
I.
Excluding those situations which are beyond its control,
a grantee will respond to any service interruption promptly and in
no event later than 24 hours from the time the interruption becomes
known. All other regular service requests will be responded to the
next business day after notification of the service problem. The appointment
window alternatives for installations, service calls and other installation
activities will be "morning" or "afternoon," not to exceed a four-hour
"window" during normal business hours for a system, or at a time that
is mutually acceptable to a grantee and a customer. A grantee will
schedule supplemental hours during which appointments can be scheduled
based on the needs of the community. If at any time an installer or
technician is running late, an attempt to contact the customer will
be made and the appointment rescheduled as necessary at a time that
is convenient to the customer.
J.
Unless otherwise provided for in the franchise agreement,
a customer service center(s) and bill payment location(s) will be
open for walk-in customer transactions a minimum of eight hours a
day, Monday through Friday, unless there is a need to modify those
hours because of the location or customers served. A grantee may,
in its sole discretion, establish supplemental hours on weekdays and
weekends if it would fit the needs of the community.
K.
In the event of an outage of subscriber cable service,
the following shall apply after proper notification to grantee:
(1)
For outages of over six hours and up to seven days,
the grantee shall provide, at a subscriber's written request, a credit
of 1/30 of one month's fees for affected services for each twenty-four-hour
period service is interrupted for six or more hours for any single
subscriber, with the exception of subscribers disconnected because
of nonpayment or excessive signal leakage or circumstances beyond
grantee's reasonable control. For outages lasting six hours or less,
the credit extended to a subscriber shall be prorated on an hour-for-hour
basis.
(2)
For outages of seven days or more in one month which
have been properly reported to grantee and which are within the reasonable
control of the grantee, the grantee shall provide, at a subscriber's
written request, a full month's credit for affected services for affected
subscribers.
L.
A grantee will provide written information in each
of the following areas at the time of installation and at any future
time upon the request of the customer:
M.
Bills will be clear, concise and understandable, with
all services itemized consistent with the federal law.
N.
Credits will be issued promptly but no later than
a customer's next billing cycle following the resolution of the request
and the return of equipment to a grantee if service has been terminated.
O.
Unless otherwise specified by FCC regulations, customers
and the Town will be notified a minimum of 30 days in advance of any
rate or programming channel change, provided that the change is within
the control of a grantee.
P.
A grantee shall maintain and operate its cable system
in accordance with the rules and regulations as are incorporated herein
or may be promulgated by the FCC, the United States Congress, or the
state.
Q.
A grantee shall continue, through the term of a franchise,
to maintain the technical standards and quality of service specified
in this chapter. Should the Town find, by resolution, that a grantee
has failed to maintain these technical standards and quality of service,
a grantee shall be required to implement a plan for resolution.
R.
A grantee shall keep a record of monthly service calls
which will indicate the nature of each service complaint received
in the last 24 months, the date and time it was received, the disposition
of said complaint, and the time and date thereof. Upon reasonable
notice, such records shall be made available to the Town for inspection.
S.
All personnel of a grantee contacting subscribers
or potential subscribers outside the office of the grantee must be
clearly identified as associated with the grantee.
T.
The provisions of § 87-42 notwithstanding, in the event a grantee fails to arrive for installations and/or service calls within the scheduled four-hour time-frame set forth in this chapter under normal operating conditions less than 90% of the time as measured on a quarterly basis, then the Town may impose a monetary penalty upon the grantee. The amount of such monetary penalty shall be established by resolution of the Mayor and Council. Prior to imposition of the penalty, the Town shall notify the grantee in writing of the alleged default. Upon receipt of the notice, the grantee shall have a sixty-day period in which to correct the default or it may elect to pay such penalty, in which event the act or omission giving rise to the penalty shall not be the basis for any other sanction by the Town. ln the alternative, a grantee shall have the right to request a hearing affording due process before the Mayor and Council to determine whether the penalty should be imposed, and the imposition of any such penalty shall be stayed pending the final outcome of such proceeding.
U.
A grantee shall not terminate residential service
for nonpayment of a delinquent account unless the grantee provides
initial notice of the delinquency and impending termination at least
10 days prior to the proposed termination. Such notice of delinquency
shall be mailed, postage prepaid, to the subscriber to whom the service
is billed. This notice shall not be sent until the 28th day after
the initial bill for service was mailed to the subscriber. The notice
of delinquency and impending termination may be part of a billing
statement. This section does not apply to subscribers disconnected
due to NSF (not sufficient funds) checks.
V.
Refund checks shall be issued by a grantee within
30 days following a subscriber's valid request.
A.
It shall be the right of all subscribers to continue
receiving service insofar as their financial and other obligations
to a grantee are honored. If a grantee elects to rebuild, modify or
sell its system, or the Town gives notice of intent to terminate or
fails to renew a franchise, the grantee shall act so as to ensure
that all subscribers receive continuous, uninterrupted service regardless
of the circumstances.
B.
If there is a change of franchise or if a new operator
acquires the system, a grantee shall cooperate with the Town, new
franchisee or operator in maintaining continuity of service to all
subscribers. During this transition period, which shall not exceed
12 months, a grantee shall be entitled to the revenues for any period
during which it operates the system and shall be entitled to reasonable
costs for its services until it no longer operates the system.
C.
Unless otherwise provided for in the franchise agreement,
if a grantee fails to operate a system for 14 consecutive days without
prior approval of the Town or without just cause, the Town may, at
its option, operate the system or designate an operator until such
time as the grantee restores service under conditions acceptable to
the Town or a permanent operator is selected. If the Town is required
to fulfill this obligation for a grantee, the grantee shall reimburse
the Town for all reasonable costs or damages in excess of revenues
from the system received by the Town that are the result of the grantee's
failure to perform.
A.
The Town Manager, or his designee, is designated as
having primary responsibility for the continuing administration of
a franchise and implementation of complaint procedures.
B.
Unless otherwise provided in the franchise agreement,
a grantee shall maintain, during the term of a franchise and any renewal
thereof, a central office for the purpose of receiving and resolving
all complaints regarding the quality of service, equipment malfunctions,
and similar matters. The office must be reachable by a local, toll-free
telephone call. A grantee will use its good faith efforts to arrange
for one or more payment locations in a central location where customers
can pay bills or conduct other business activities.
C.
As subscribers are connected or reconnected to a grantee's
cable system, the grantee shall, by appropriate means, such as a card
or brochure, furnish information concerning the procedures for making
inquiries or complaints, including the address and local telephone
number of customer service.
D.
To the extent permitted by applicable law, the Town
shall have the right and authority to require a grantee to test, analyze
and report on the performance of its system, provided that the Town
shall not require a grantee to test the system as a whole, or any
specific part thereof, more than once during any calendar year, unless
a test shows that the system or such a specific part fails to meet
relevant performance specifications. A grantee shall fully cooperate
with the Town in performing such testing and shall prepare results
and a report, if requested, within 45 days after notice.
(1)
Such report shall include the following information:
(a)
The nature of the complaint or problem which
precipitated the tests;
(b)
What system component was tested;
(c)
The equipment used and procedures employed in
testing;
(d)
The method, if any, in which such complaint
or problem was resolved; and
(e)
Any other information pertinent to the tests
and analysis which may be required.
(2)
A grantee's periodic proof of performance tests conducted
pursuant to FCC standards and requirements may satisfy a test or report
required by Town under this subsection.
(3)
The Town may require an independent review of a performance
test, with the independent reviewer selected by the Town to review
the cable system in cooperation with the grantee. Should such a test
prove that the grantee failed to meet a technical standard, the grantee
shall bear the cost of such independent observer. If the test should
prove that the grantee met the technical standards, the Town shall
bear the cost of such test.
A grantee shall have the authority to promulgate
such rules, regulations, terms and conditions governing the conduct
of its business as shall be reasonably necessary to enable the grantee
to exercise its rights and perform its obligations under a franchise
and to assure an uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions of this chapter or applicable
state and federal laws, rules and regulations.
A.
For the reason that the streets and public rights-of-way
of the Town to be used by a grantee in the operation of its cable
system within the boundaries of the Town of Rock Hall are valuable
public properties acquired and maintained by the Town at great expense
to its taxpayers and that the grant of a franchise to a grantee is
a valuable right without which a grantee would be required to invest
substantial capital in right-of-way costs and acquisitions, the grantee
shall pay to the Town an amount equal to 5% of the grantee's gross
revenue, unless otherwise provided for in the franchise agreement.
If the statutory 5% limitation on franchise fees is raised or the
federal statute deletes the franchise fee limitation entirely, then
the franchise fee may be subject to renegotiation.
B.
This payment shall be in addition to any other tax,
fee or assessment of general applicability or payment owed to the
Town by a grantee.
C.
The franchise fee and any other costs or penalties
assessed shall be payable quarterly on a calendar-year basis to the
Town, and a grantee shall file a complete and accurate verified statement
of all gross revenues within 45 days after the quarter as established
between the Town and the grantee.
D.
The Town shall have the right, no more frequently
than biannually, to inspect a grantee's income records and the right
to audit and to recompute any amounts determined to be payable under
this chapter upon 30 days' prior notice to the grantee. Any additional
amount due to the Town as a result of the audit shall be paid within
30 days following written notice to the grantee by the Town, which
notice shall include a copy of the audit report. Unless required by
law, the Town shall not disclose to any third party (other than its
financial advisors in their capacity as such) any financial information
or other information that would reasonably be regarded as confidential
that the Town gains access to in connection with the provisions of
this subsection. A grantee's income records, when made available to
the Town, shall not include subscriber-specific information.
E.
If any franchise fee payment or recomputed amount,
cost or penalty is not made on or before the applicable dates heretofore
specified, interest shall be charged daily from such date at the legal
maximum rate charged by the United States Internal Revenue Service
for late tax payments, and a grantee shall reimburse the Town for
any reasonable additional expenses and costs incurred by the Town
by reason of the delinquent payment(s).
A.
Except as may be provided in a franchise agreement, a franchise or a franchised cable system shall not be assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, or control over such franchise or system, pass to or vest in any person without the prior written consent of the Town. A grantee may, however, transfer or assign a franchise to any affiliate (as defined in § 87-2) or to a wholly owned subsidiary of the grantee (or its parent corporation) and such subsidiary may transfer or assign the franchise back to the grantee without such consent, providing that such transfer or assignment is without any release of liability or responsibility of the grantee for any purpose, including franchise renewal. The proposed assignee must inter alia show financial responsibility as determined by the Town and must agree to comply with all provisions of the franchise. The Town shall have 120 days to act upon any request for approval of such a sale or transfer submitted in writing that contains or is accompanied by the information required by FCC regulations and the Town. The Town shall be deemed to have consented to a proposed transfer or assignment if its refusal to consent is not communicated in writing to the grantee within 120 days following receipt of written notice and the aforementioned information, unless the requesting party and the Town agree to an extension of time.
B.
A grantee shall promptly notify the Town of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. Every assignment or transfer of a grantee as specified in § 87-28A shall make a franchise subject to revocation unless and until the Town shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the Town may inquire into the qualifications of the prospective controlling party and such other legal, technical and financial matters as the Town deems pertinent to its approval, and a grantee shall assist the Town in such inquiry.
C.
The consent or approval of the Town to any transfer
of a grantee shall not constitute a waiver or release of the rights
of the Town in and to the streets, and any transfer by its terms shall
be expressly subordinate to the terms and conditions of this chapter
and the franchise agreement.
D.
In the absence of extraordinary circumstances, the
Town shall have the discretion to disapprove any transfer or assignment
of an initial franchise prior to substantial completion of construction
of the proposed system.
E.
In no event shall a transfer of ownership or control
be approved without the successor in interest becoming a signatory
to the applicable franchise agreement.
A.
A grantee shall fully cooperate in making available
at reasonable times, and the Town shall have the right to inspect,
where reasonably necessary to the enforcement of a franchise, books,
records, maps, plans and other like materials of the grantee applicable
to the cable system at any time during normal business hours; provided,
where volume and convenience necessitate, a grantee may require inspection
to take place on the grantee's premises.
B.
The following records and/or reports are to be made
available to the Town upon 30 days' prior written request.
(1)
An annual review or progress report submitted by a
grantee to the Town;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 396-C (or successor form) or
any supplemental forms related to equal opportunity or fair contracting
policies;
(4)
Subscriber inquiry/complaint resolution date; and
(5)
Periodic construction update reports, including, where
appropriate, the submission of strand maps.
Copies of all petitions, applications, communications
and reports either submitted by a grantee to the FCC, the Securities
and Exchange Commission, or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matters
affecting cable television operations authorized pursuant to the franchise,
or received from such agencies, shall be provided to the Town upon
request.
A grantee shall file annually with the Town,
no later than 120 days after the end of the grantee's fiscal year,
a copy of a gross revenues statement certified by an officer of the
grantee.
At the expiration of the term for which a franchise
is granted, or if any renewal request is denied, or upon the termination
of a franchise as provided herein, a grantee shall forthwith, upon
reasonable notice by the Town, remove at its own expense all designated
portions of its cable television system from all streets and public
property within the Town. If a grantee fails to do so within 12 months
of notice, the Town may perform the work at the grantee's expense.
Upon such notice of removal, a bond shall be furnished by a grantee
in an amount sufficient to cover this expense.
A.
A cable television system shall have facilities as
set forth in the applicable franchise agreement.
B.
Such cable system shall maintain a plant having the
technical capacity for "Two-Way" communications, unless otherwise
provided in the franchise agreement.
C.
At the Town's request, a grantee shall maintain the
following:
(1)
At least one specially designated, noncommercial public
access channel available on a first-come, nondiscriminatory basis;
(2)
At least one specially-designated channel for use
by local educational authorities; and
(3)
At least one specially designated channel for local
government uses;
(4)
Provided, however, that the uses specified in this
section may be combined on one or more channels until such time as
the Town demonstrates sufficient need for additional channels pursuant
to a demonstrable programming demand provided for in the franchise
agreement. Financial and technical support, replacement and maintenance
of equipment of this facility shall be separately incorporated into
the franchise agreement.
(5)
An institutional network (I-Net) of cable, optical,
electrical, or electronic equipment used for the purpose of transmitting
two-way telecommunications signals interconnecting designated entities,
if set forth in a franchise agreement and mutually agreed to by a
grantee and the Town. The Town and the grantee may agree that such
an institutional network may be provided by utilizing capacity on
the subscriber system.
D.
A grantee shall incorporate into its cable television
system sufficient capacity that will permit the Town, in times of
emergency, to override, by remote control, the audio of all channels
simultaneously which the grantee may lawfully override. A grantee
shall provide emergency alert capacity pursuant to FCC rules. A grantee
shall cooperate with the Town in the use and operation of the emergency
alert override system.
E.
A grantee may be required to interconnect its system
with other contiguous cable television systems for the purpose of
sharing PEG access programming. Such interconnection shall be made
within a reasonable time limit to be established by the Town.
(1)
Interconnection procedure. Upon receiving the directive
of the Town to interconnect, a grantee shall immediately initiate
negotiations with the other affected system or systems in order to
complete the interconnection link.
(2)
Relief. A grantee may be granted reasonable extensions
of time to interconnect or the Town may rescind its order to interconnect
upon petition by the grantee to the Town. The Town shall grant the
request if it finds that the grantee has negotiated in good faith
and has failed to obtain an approval from the operator or franchising
authority of the system to be interconnected or the cost of the interconnection
would cause an unreasonable or unacceptable increase in subscriber
rates.
(3)
Cooperation required. A grantee shall cooperate with
any interconnection corporation, regional interconnection authority
or Town, state and federal regulatory agency which may be hereafter
established for the purpose of regulating, financing, or otherwise
providing for the interconnection of cable systems beyond the boundaries
of the Town of Rock Hall.
(4)
The full cost of an interconnection link shall be
borne by the Town, if the interconnection is being made at the direction
of the Town. However, the full cost of this link shall be borne by
the participating persons, in the event that the interconnection is
being made for any reason other than at the direction of the Town.
In addition to the inherent powers of the Town
to regulate and control a cable television franchise, and those powers
expressly reserved by the Town or agreed to and provided for in a
franchise agreement, the right and power is hereby reserved by the
Town to promulgate such additional regulations as it shall find necessary
in the exercise of its lawful powers and furtherance of the terms
and conditions of this chapter; provided, however, that such rules,
regulations, terms or conditions shall not be in conflict with any
franchise agreement granted hereunder or applicable state and federal
laws, rules and regulation.
A.
The Town and a grantee may hold scheduled performance
evaluation sessions within 30 days of the third and sixth anniversary
dates of the grantee's award or renewal of the franchise and as may
be required by federal and state law. All such evaluation sessions
shall be open to the public.
B.
Special evaluation sessions may be held at any time
during the term of a franchise at the request of the Town or the grantee.
C.
All scheduled performance evaluation sessions shall
be open to the public and announced in a newspaper of general circulation
in accordance with legal notice. A grantee may be required by the
Town to notify its subscribers of all such evaluation sessions by
announcements on at least one channel of its system during a specified
time-frame preceding each session.
D.
Topics which may be discussed at any scheduled or
special evaluation session may include but not be limited to franchise
fee, penalties; application of new technologies; system performance;
customer complaints, privacy; amendments to this chapter; judicial
and FCC rulings; line extension policies; and grantee or Town rules.
E.
Members of the general public may add topics either
by working through the Town or the grantee or by presenting a petition
to the Mayor and Council outlining the topic or topics sought to be
discussed at the evaluation session.
A.
In addition to all other rights and powers retained
by the Town under a franchise or otherwise, the Town reserves the
right to forfeit and terminate a franchise and all rights and privileges
of a grantee hereunder in the event of a substantial breach of the
terms and conditions of this chapter or a franchise agreement. A substantial
breach by a grantee shall include but shall not be limited to the
following:
(1)
Violation of any material provision of a franchise
or this chapter, or any material rule, order, regulation or determination
of the Town made pursuant to a franchise or this chapter.
(2)
Attempt to evade any material provision of a franchise
or practice any fraud or deceit upon the Town or the grantee's subscribers
or customers;
(4)
Failure to provide the services promised in the grantee's
application, if any, as incorporated in a franchise agreement;
(5)
Failure to restore service after 96 consecutive hours
of an outage or service interruption, except when approval of such
outage or service interruption is obtained from the Town; or
(6)
Material and intentional misrepresentation of fact
in the application for or negotiation of a franchise.
B.
The foregoing shall not constitute a major breach
if the violation occurs but is without fault of a grantee or occurs
as a result of circumstances beyond its control. A grantee shall not
be excused by mere economic hardship or by misfeasance or malfeasance
of its directors, officers or employees.
C.
The Town shall make a written demand that a grantee
comply with any such provision, rule, order or determination under
or pursuant to this chapter or a franchise agreement. If the violation
by a grantee continues for a period of 30 days following such written
demand, without written or other proof acceptable to the Town that
the corrective action has been taken or is being actively and expeditiously
pursued, the Town may place the issue of termination of a franchise
before the Mayor and Council. The Town shall cause to be served upon
a grantee, at least 20 days prior to the date of such meeting, a written
notice of intent to request such termination and the time and place
of the meeting. Public notice shall be given of the meeting and the
issue(s) which the Mayor and Council are to consider.
D.
The Mayor and Council shall hear and consider the
issue(s) and shall hear any person interested therein and shall determine
in their discretion whether or not any violation by a grantee has
occurred.
E.
If the Mayor and Council determine the violation by
a grantee was the fault of the grantee and within its control, the
Mayor and Council may, by resolution, declare that the franchise of
the grantee shall be terminated unless there is compliance within
such period as the Mayor and Council may fix, such period shall not
be less than 60 days, provided no opportunity for compliance need
be granted for fraud or misrepresentation.
A.
A franchise may be deemed revoked 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 a franchisee,
whether in a receivership, reorganization, bankruptcy assignment for
the benefit of creditors, or other action or proceeding; provided,
however, that a franchise may be reinstated at the Town's sole discretion
if, within that one-hundred-twenty-day period:
(1)
Such assignment, receivership or trusteeship has been
vacated; or
(2)
Such assignee, receiver, or trustee has fully complied
with the terms and conditions of this chapter and the applicable franchise
agreement and has executed an agreement, approved by a court of competent
jurisdiction, under which it assumes and agrees to be bound by the
terms and conditions of this chapter and the applicable franchise
agreement, and such other conditions as may be established or as are
required by applicable law.
B.
Notwithstanding the foregoing, in the event of foreclosure
or other judicial sale of any of the facilities, equipment, or property
of a franchisee, the Town may revoke the franchise, following a public
hearing before the Mayor and Council, by serving notice on the grantee
and the successful bidder, in which event the franchise and all rights
and privileges of the franchise will be revoked and will terminate
30 calendar days after serving such notice, unless:
(1)
The Town has approved the transfer of the franchise
to the successful bidder; and
(2)
The successful bidder has covenanted and agreed with
the Town to assume and be bound by the terms and conditions of the
franchise agreement and this chapter, and such other conditions as
may be established or as are required pursuant to this chapter or
a franchise agreement.
A.
Federal regulations pursuant to the cable act shall apply to the right of acquisition by the Town. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B of this section shall apply.
B.
Upon the expiration of the term of a franchise and
denial of any renewal, or upon any other termination thereof as provided
in this chapter, the Town at its election shall have the right to
purchase and take over a system upon resolution by the Mayor and Council.
In such event, the system shall be purchased at a price equal to the
fair market value, determined on the basis of the cable system's value
as a going concern but with no value allocated to the franchise itself,
or at a price determined in accordance with the franchise agreement
if the franchise agreement contains provisions applicable to such
an acquisition. The Town must begin exercise of its option to purchase
the system within 60 days of the denial of franchise renewal. Nothing
shall prohibit a grantee, in the event of the election of the Town
to purchase a system, from requesting a court of competent jurisdiction
to set a reasonable bond of the Town to secure the purchase price,
which is to be immediately available funds at the time of purchase.
A.
Notwithstanding any other provisions of this chapter
to the contrary, a grantee shall at all times comply with all laws
and regulations of the local, state and federal government or any
administrative agencies thereof; provided, however, if any such state
or federal law or regulation shall require the grantee to perform
any service, or shall permit a grantee to perform any service, or
shall prohibit the grantee from performing any service, in conflict
with the terms of this chapter or of any law or regulation of the
Town, then, as soon as possible following knowledge thereof, the grantee
shall notify the Town of the point of conflict believed to exist between
such regulation or law and the laws or regulations of the Town or
this chapter.
B.
If the Town determines that a material provision of
this chapter is affected by any subsequent action of the state or
federal government, the Town shall modify any of the provisions herein
to comply with such state or federal law or regulation to such reasonable
extent as may be necessary to carry out the full intent and purpose
of this chapter and the franchise agreement and to preserve the benefit
of the bargain for each party.
A.
Interference with cable service is prohibited. Neither
the owner of any multiple-unit residential dwelling nor his agent
or representative shall interfere with the right of any tenant or
lawful resident thereof to receive cable service, cable installation
or maintenance from a grantee regulated by and lawfully operating
under a valid and existing franchise issued by the Town.
B.
Gratuities and payments to permit service are prohibited.
Neither the owner of any multiple-unit residential dwelling nor his
agent or representative shall ask, demand or receive any payment,
service or gratuity in any form as a condition for permitting or cooperating
with the installation of a cable service to the dwelling unit occupied
by a tenant or resident requesting cable service.
C.
Penalties and charges to tenants for service are prohibited.
Neither the owner of any multiple-unit residential dwelling nor his
agent or representative shall penalize, charge or surcharge a tenant
or resident, or forfeit or threaten to forfeit any right of such tenant
or resident, or discriminate in any way against such tenant or resident
who requests or receives cable service from a grantee operating under
a valid and existing franchise issued by the Town.
D.
Reselling service is prohibited. No person shall resell,
without the expressed, written consent of the Town, any cable service,
program or signal transmitted by a grantee under a franchise issued
by the Town.
E.
Protection of property is permitted. Nothing in this
chapter shall prohibit a person or the Town from requiring that cable
television system facilities conform to laws and regulations and reasonable
conditions necessary to protect safety, functioning, appearance and
value of premises or the convenience and safety of persons or property.
F.
Except as provided by state or federal law, nothing
in this chapter shall prohibit a person from requesting a grantee
to indemnify the owner, or his agents or representatives, for damages
or from liability for damages caused by the installation, operation,
maintenance or removal of cable system facilities.
A.
Any person desiring an initial franchise for a cable
television system, the renewal of a franchise, or a modification of
a franchise shall file a written application with the Town. The application
shall be in such form and under such terms and conditions as determined
by the Town.
B.
To be acceptable for filing, a signed original of
the application shall be submitted together with 10 copies. The application
must be accompanied by any required application filing fee, conform
to any applicable request for proposals (RFP), and contain all required
information. All applications shall include the names and addresses
of persons authorized to act on behalf of all applicants with respect
to the application.
C.
All applications accepted for filing shall be made
available by the Town for public inspection.
D.
A person may apply for an initial franchise or a franchise renewal by submitting an application containing the information required in § 87-41E. Upon receipt of such an application, the Town may either evaluate the application pursuant to § 87-41D(3), conducting such investigations as it deems necessary, or issue a request for proposals (RFP's), after conducting, if necessary, a proceeding to identify the future cable-related needs and interests of the community. Any such RFP shall be mailed to the person requesting its issuance and made available to any other interested person. The RFP may contain a proposed franchise agreement.
(1)
An applicant shall respond to an RFP by filing an application within the time directed by the Town, providing the information and material set forth in § 87-41E. Each applicant shall follow the procedures, instructions, and requirements set forth in the RFP. Any applicant that has already filed materials pursuant to § 87-41D(2) herein need not re-file the same materials with its RFP response but must amplify its applications to include any additional or different materials required by the RFP. The Town or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(2)
Notwithstanding the provisions of this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in § 87-41E and requesting an evaluation of that application pursuant to § 87-41D(3). Prior to evaluating that application, the Town may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in § 87-41D(3) and may seek additional applications.
(3)
In evaluating an application for a franchise or a
renewal thereof, the Town shall consider, among other things, the
following factors:
(a)
The extent to which the applicant has substantially
complied with the applicable law and the material terms of any existing
franchise for the Town;
(b)
Whether the quality of the applicant's service
under any existing franchise in the Town of Rock Hall, including signal
quality, response to customer complaints, billing practices, but without
regard to the mix and quality of cable services or other services
provided over the system, has been reasonable in light of the needs
and interests of the communities served;
(c)
Whether the applicant has the financial, technical,
and legal qualifications to provide cable service;
(d)
Whether the application satisfies any minimum
requirements established by the Town and is otherwise reasonable 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, to the extent not considered under § 87-41D(3)(d), the applicant will provide adequate PEG access channel capacity, facilities, or financial support;
(f)
Whether issuance of a franchise is warranted
in the public interest, considering the immediate and future effect
on the public rights-of-way and private property 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;
the effect of granting a franchise on the ability of cable to meet
the cable-related needs and interests of the community; and the comparative
superiority or inferiority of competing applications; and
(g)
What effects a grant of the franchise may have
on competition in the delivery of cable service in the Town of Rock
Hall.
(4)
If the Town finds that it is in the public interest
to issue or renew a franchise considering the factors set forth in
this section, and subject to the applicant's entry into an appropriate
franchise agreement, it shall proceed with the grant or renewal of
franchise. If the Town denies a franchise or renewal thereof after
consideration of the factors set forth in this section, it will issue
a written decision explaining the denial. The Town also may grant
or deny a request for a franchise or renewal thereof based on its
review of an application without further proceedings and may reject
any application that is incomplete or fails to respond to an RFP.
This chapter is not intended and shall not be interpreted to grant
any applicant or existing franchisee standing to challenge the issuance
of a franchise to another person.
(5)
Prior to rendering a final decision whether or not
to issue or renew a franchise pursuant to this section, the Town shall
provide public notice of the franchise application; the Town may hold
one or more public hearings or implement other procedures under which
comments from the public and/or the applicant on an application may
be received; and, in the event of a renewal application where the
franchise may not be renewed, the Town shall provide a preliminary
assessment to the franchisee seeking renewal and shall afford that
applicant an opportunity to respond to the preliminary assessment.
E.
An RFP for the grant of an initial franchise shall
require, and any such application 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 the 10 largest holders of an ownership interest in
the applicant and affiliates of the applicant, and all persons with
5% or more ownership interest in the applicant and its affiliates;
the persons who control the applicant and its affiliates; and all
officers and directors of the applicant and its affiliates.
(2)
A demonstration of the applicant's technical ability
to construct and/or operate the proposed cable system, including identification
of key personnel.
(3)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system.
(4)
A statement prepared by a certified public accountant
regarding the applicant's financial ability to complete the construction
and operation of the cable system proposed.
(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 principals have,
or have had, a cable franchise or any interest therein.
(6)
Identification of the area of the Town of Rock Hall
to be served by the proposed cable system, including a description
of the proposed franchise area's boundaries.
(7)
A detailed description of the physical facilities
proposed, including channel capacity, technical design, performance
characteristics, headend, and access facilities.
(8)
Where applicable, a description of the construction
of the proposed system, including an estimate of plant mileage and
its location; the proposed construction schedule; a description, where
appropriate, of how services will be converted from existing facilities
to new facilities; and information on the availability of space in
conduits, including, where appropriate, an estimate of the cost of
any necessary rearrangement of existing facilities.
(9)
The proposed rate structure, including projected charges
for each service, installation, converters, and all other proposed
equipment or service.
(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 the needs described
in any recent community needs assessment conducted by or for the Town,
and how the applicant will provide adequate PEG access channel capacity,
facilities, or financial support to meet the community's needs and
interests.
(11)
Pro forma financial projection for the proposed
franchise term, including a statement of projected income, and a schedule
of planned capital additions, with all significant assumptions explained
in notes or supporting schedules.
(12)
If the applicant proposes to provide cable service
to an area already served by an existing cable franchisee, the identification
of the area where the overbuild would occur 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 that may be reasonably
necessary to demonstrate compliance with the requirements of this
chapter.
(14)
Any additional information that the Town may
request of the applicant that is relevant to the Town's consideration
of the application.
(15)
An affidavit or declaration of the applicant
or authorized officer certifying the truth and accuracy of the information
in the application, acknowledging the enforceability of application
commitments, and certifying that the application meets all federal
and state law requirements.
(16)
The Town may, at its discretion and upon request
of an applicant, waive in writing the provision of any of the information
required by this section.
F.
An application for modification of a franchise agreement
shall include, at minimum, the following information:
(1)
The specific modification requested;
(2)
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, inter alia, submission
of financial pro formas;
(3)
A statement whether the modification is sought pursuant
to § 625 of the cable act, and, if so, a demonstration that
the requested modification meets the standards set forth therein;
(4)
Any other information that the applicant believes
is necessary for the Town to make an informed determination on the
application for modification; and
(5)
An affidavit or declaration of the applicant or authorized
officer, certifying the truth and accuracy of the information in the
application and certifying that the application is consistent with
all federal and state law requirements.
G.
An applicant shall be notified of any public hearings
held in connection with the evaluation of its application and shall
be given an opportunity to be heard.
H.
Filing fees. A nonrefundable application fee of $3,000 shall accompany any initial franchise application. A nonrefundable application fee of $1,000 shall accompany any renewal application or modification application, unless otherwise stipulated by the Town. In addition, the Town may require an applicant to reimburse the Town for its reasonable out-of-pocket expenses in considering the application, including consultants' fees. Payments made by a grantee hereunder shall not be deemed to be franchise fees within the meaning of the cable act, and such payment shall not be deemed to be involuntary payment chargeable against, or part of, the compensation to be paid to the Town by a grantee pursuant to § 87-27 of this chapter and applicable provisions of a franchise agreement. The purpose of the application fees is to cover costs incidental to processing and evaluating the application or enforcement of the franchise.
A.
In the event the Town believes that a grantee has
not complied with the provisions of the chapter or a franchise agreement,
the Town, by action of the Town Manager, shall notify the grantee
in writing by personal delivery or registered or certified mail, specifying
the nature of the alleged noncompliance or default and demanding correction
within a reasonable time.
B.
A grantee shall have 30 days from the receipt of the Town's notice described in § 87-42A:
(1)
To respond to the Town, contesting the assertion of
the noncompliance or default; or
(2)
To cure such noncompliance or default; or
(3)
In the event that, by nature of the noncompliance
or default, such noncompliance or default cannot be cured within the
thirty-day period, initiate reasonable steps to remedy such noncompliance
or default and notify the Town of the steps being taken and the projected
date that they will be completed.
C.
In the event grantee fails to respond to the Town's notice described in Subsection A of this section; fails to correct a violation within the time prescribed and diligently remedy such violation thereafter; or responds contesting the alleged noncompliance, the grantee shall then be given a written notice of not less than 20 days of a public hearing to be held before the Mayor and Council. Said notice shall specify the violation(s) alleged. At the public hearing, the Mayor and Council shall hear and consider all relevant evidence, and thereafter render findings and their decision.
D.
In the event the Mayor and Council find that a grantee
has corrected the violation, or has diligently commenced correction
of such violation after notice thereof from grantor and is diligently
proceeding to fully remedy such violation, or that no material violation
has occurred, the proceedings shall terminate and no penalty or other
sanction shall be imposed. In determining whether a violation is material,
grantor shall take into consideration the reliability of the evidence
of the violation; the nature of the violation and the damage, if any,
caused to the Grantor thereby; whether the violation was chronic;
and any justifying or mitigating circumstances; and such other matters
as the grantor may deem appropriate.
E.
If the Town determines after the due process hearing prescribed in Subsection C that the grantee is in noncompliance and that noncompliance is not cured within the times set forth in Subsection B of this section, or in the event that the alleged noncompliance or default is not remedied within the 30 days or the date projected pursuant to Subsection B of this section, the violation shall be deemed a municipal infraction and a penalty of up to $400 for each day that a violation occurs may be assessable by the Town against a grantee in addition to any amounts otherwise due and may be chargeable to the grantee's surety bond, letter of credit, performance bond or security deposit. In the alternative, the Town may seek legal or equitable relief from any court of competent jurisdiction.
F.
Unless otherwise provided in this chapter, a grantee
shall pay any penalty assessed in accordance with this chapter within
30 days after receipt of notice from the Town of such penalty.
G.
To the extent that penalties are applied to a grantee
under this section, a grantee shall not be subject to additional liquidated
damages payable to the Town for the same violation.
H.
Pending litigation or any appeal to any regulatory
body or court having jurisdiction over a grantee shall not excuse
the grantee from the performance of its obligations under this chapter
or its franchise agreement unless a stay is obtained. Failure of the
grantee to perform such obligations because of pending litigation
or petition, in the absence of a stay issued by a forum of competent
jurisdiction, may result in forfeiture or revocation pursuant to the
provisions of this chapter and/or its franchise agreement.
The Town reserves the right to regulate rates
for basic cable service and any other services offered over the cable
system, to the extent permitted by federal or state law. The grantee
shall be subject to the rate regulation provisions provided for herein
and those of the FCC. The Town shall follow the rules relating to
cable rate regulation promulgated by the FCC.
If any provision of this chapter is held by
any court or by any state or federal agency of competent jurisdiction
to be invalid as conflicting with any federal or state law, rule or
regulation now or hereinafter in effect, or is held by such court
or agency to be modified in any way in order to conform to the requirements
of any such law, rule or regulation, such provision shall be considered
a separate, distinct, and independent part of this chapter, and such
holding shall not affect the validity and enforceability of all other
provisions hereof.
A grantee shall not oppose intervention by the
Town in any suit or proceeding to which the grantee is a party in
connection with a franchise hereunder.
