[HISTORY: Adopted by the County Council of Wicomico County 5-14-2001
by Bill No. 2001-5. Amendments noted where applicable.]
GENERAL REFERENCES
Streets — See Ch. 197.
This chapter shall be known and may be cited as the "Cable Television
Franchise Chapter" (hereinafter "chapter").
For the purpose of this chapter and any franchise agreement entered
into hereunder the following terms, phrases, words and their derivations shall
have the meanings given herein:
Any entity, including a nonprofit community access corporation, designated
by the county to perform any or all of the following functions: manage any
necessary scheduling or allocation of any PEG or institutional network channel
capacity; and/or program any PEG channel on the county's behalf.[1]
Each person who falls into one or more of the following categories:
each person having, directly or indirectly, a controlling interest in a grantee;
each person in which a grantee has, directly or indirectly, a controlling
interest; 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 of 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.
The binding contract entered into between the county and a grantee,
and any amendments, exhibits or appendices thereto.
Any subscriber tier provided by the grantee which includes the delivery
of local broadcast stations, and public, educational and governmental access
channels. Basic service does not include optional program and satellite service
tiers, a la carte services, per channel, per program, or auxiliary services
for which a separate charge is made. However, grantee may include other satellite
signals on the basic service tier.
A facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable television service which includes video programming and which is provided
to multiple subscribers within the county, 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 Communications 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;
an open video system that complies with 47 U.S.C. § 573; or any
facilities of any electric utility used solely for operating its electric
utility system. 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 county to regulate or franchise the activities of any
other communications system or provider of communications services to the
full extent permitted by law.
A portion of the electromagnetic frequency spectrum, which 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 an 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.
Wicomico County, Maryland, and any agency or department thereof.
The executive head of the county government, or his designee.
[Added 10-17-2006 by Bill No. 2006-11]
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
A nonexclusive authorization, evidenced by a written franchise agreement,
granted pursuant to this chapter and applicable law to construct, operate
and maintain a cable system within the streets to provide cable service within
all or a specified area of the county. 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 county as required by state or county
law, ordinances, or regulations, or for attaching devices to poles or other
structures, whether owned by the county or a private entity, or for excavating
or performing other work in or along the streets.
The area of the county that a grantee is authorized to serve by its
franchise.
A person or entity to whom or which a franchise under this chapter
is granted by the county, 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 a cable 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 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 county 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 the 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 the 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
county.
All areas in the county having at least 25 dwelling units per street
mile.
The connection of the system from feeder cable to subscribers'
terminals.
Permissive.
As applied to a grantee, those hours during which similar businesses
in the county are open to serve customers. In all cases, normal business hours
shall include some evening hours at least one night per week, and/or 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. Those
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.
Public, educational and governmental.
An individual, 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 county.
The loss of either picture or sound, or both for a single subscriber.
Mandatory.
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 county for the purpose of public travel and shall include other
easements or rights-of-way as shall be now held or hereafter held by the county
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.
Any person, firm, grantee, corporation, or association lawfully receiving
basic service and/or any additional service from the grantee.
A party 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.
[1]
Editor's Note: The former definition of “Administrative Director,”
which immediately followed this definition, was repealed 10-17-2006 by Bill
No. 2006-11.
Any franchise granted by the county shall grant to a grantee the right
and privilege to erect, construct, operate and maintain in, upon, and along,
across, above, over and under the streets, 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 county 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 Section 621 of the Cable Act, 47 U.S.C.
§ 541(A)(2)], 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 county, in the opinion of the county,
shall prevail.
Any franchise to provide cable service is for the franchise area defined
in a franchise agreement.
A franchise and the rights, privileges and authority granted shall take
effect and be in force as set forth in a franchise agreement and shall continue
in force and effect for a term of no longer than 15 years, provided that within
15 days after the date of final passage of the franchise, a grantee shall
file with the county its unconditional acceptance of the franchise and promise
to comply with and abide by all its provisions, terms and conditions. Such
acceptance and promise shall be in writing duly executed and sworn to, by,
or on behalf of the grantee before a notary public or other officer authorized
by law to administer oaths. Such franchise shall be nonexclusive and revocable.
Franchise renewals shall be conducted in accordance with Section 626
of the Cable Communications Policy Act of 1984 as amended, or then applicable
law.
A.
In accepting a franchise, a grantee shall acknowledge
that its rights thereunder are subject to the police power of the county to
adopt and enforce general ordinances pursuant to applicable law; and shall
agree to comply with all applicable laws, ordinances, policies, codes, rules
and regulations enacted or adopted by the county pursuant to such power.
B.
Any conflict between the provisions of this chapter and
any other present or future lawful exercise of the county's police powers
shall be resolved in favor of the latter, except that any such exercise that
is not of general application in the county, or applies exclusively to the
grantee or cable television systems, which contain provisions inconsistent
with the grantee's franchise agreement, shall prevail only if upon such
exercise the county finds an emergency exists constituting a danger to health,
safety, property or general welfare or such exercise is mandated by law.
No cable system shall be allowed to occupy or use the public right-of-way
of the county for system installation and maintenance purposes, or be allowed
to operate without a valid franchise issued pursuant to this chapter.
The county shall have the right, during the life 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 county 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, incurred by the county in its study,
preparation of proposal documents, evaluation of all applications, and examinations
of the applicants' qualifications. Any payments made to the county pursuant
to this section shall not be considered franchise fees within the meaning
of 47 U.S.C. § 542.
All notices from a grantee to the county pursuant to this chapter shall
be to the Administrative Director's office. Every grantee shall maintain
with the county, 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 Cable Television Chapter.
A.
Within 15 days after the award of a franchise, a grantee
shall deposit with the county an irrevocable letter of credit from a financial
institution, a security deposit, or a surety bond, in an amount as set forth
in the franchise agreement. The form and content of such letter of credit,
security deposit, or surety bond shall be approved by the County Attorney.
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 county 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 county 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 a franchise agreement.
C.
If a grantee fails to pay to the county any compensation
within the time fixed herein or in a franchise agreement; or fails to repay
the county within 30 days, any damages, costs or expenses which the county
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 county to comply with any material provision of this chapter or a franchise
which the county reasonably determines can be remedied by demand on the letter
of credit, security deposit, or surety bond, the county 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 county shall notify the grantee of the amount and date thereof.
D.
The rights reserved to the county with respect to the
letter of credit, security deposit or surety bond are in addition to all other
rights of the county, 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
county 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 thirty days after receipt by the county,
by registered mail, of a written notice of such intention to cancel or not
to renew."
F.
Upon receipt of the thirty-day notice, this shall be
construed as a default granting the county 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.
G.
The county may at any time during the term of the franchise
waive the 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 county or a grantee.
A.
Within 30 days after the award of a franchise to an initial
grantee, such grantee shall file with the county 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 county. This bond shall be maintained throughout
the construction period and until such time as determined by the county, 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 county 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 county's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § 119-13.
C.
The county shall, upon completion of construction of
the initial service area, waive or reduce the requirement of a grantee to
maintain the bond. However, the county 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 are
determined jointly by the county 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 thirty
days after receipt by the county, 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 county the right to call in
the bond.
E.
The county 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 county or grantee.
A.
A grantee shall maintain, and by its acceptance of a
franchise, specifically agrees that it will maintain throughout the term of
a franchise, liability insurance insuring the county and the grantee in the
minimum amount of:
B.
The certificate of insurance obtained by a grantee in
compliance with this section must be approved by the County Attorney, and
such certificate of insurance, along with written evidence of payment of required
premiums, shall be filed and maintained with the county during the term of
a franchise, and the county may adjust the insurance limits to reflect the
increase in consumer price index every five years. A grantee shall immediately
advise the County Attorney of any litigation that may develop that would affect
this insurance.
C.
Neither the provisions of this section nor any damages
recovered by the county thereunder, shall be construed to or limit the liability
of a grantee under any franchise issued hereunder or for damages.
D.
All insurance policies maintained pursuant to this chapter
shall contain the following endorsement: "It is hereby understood and agreed
that this insurance policy 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 county,
by registered mail, of a written notice of such intention to cancel or not
to renew."
A.
Disclaimer of liability. The county 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 to the act or omission of any person other than the county or those
persons for which the county is legally liable as a matter of law.
B.
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the county, all associated, affiliated,
allied and subsidiary entities of the county, now existing or hereinafter
created, and their respective officers, boards, commissions, employees, agents,
attorneys, and contractors (hereinafter referred to as "indemnitees"), from
and against:
(1)
Any and all liability, obligation, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the indemnitees
by reason of any act or omission of a grantee, its personnel, employees, agents,
contractors or subcontractors, resulting in personal injury, bodily injury,
sickness, disease or death to any person or damage to, loss of or destruction
of tangible or intangible property, libel, slander, invasion of privacy and
unauthorized use of any trademark, trade name, copyright, patent, service
mark or any other right of any person, firm or corporation, which may arise
out of or be in any way connected with the construction, installation, operation,
maintenance or condition of a cable system caused by a grantee, its subcontractors
or agents or the grantee's failure to comply with any federal, state
or local statute, ordinance or regulation.
(2)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and other consultants),
which are imposed upon, incurred by or asserted against the indemnitees by
reason of any claim or lien arising out of work, labor, materials or supplies
provided or supplied to a grantee, its contractors or subcontractors, for
the installation, construction, operation or maintenance of a cable television
system caused by a grantee, its subcontractors or agents and, upon the written
request of the county shall cause such claim or lien to be discharged or bonded
within 15 days following such request.
(3)
Any and all liability, obligation, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the indemnitees
by reason of any financing or securities offering by a grantee or its affiliates
for violations of the common law or any laws, statutes, or regulations of
the State of Maryland or the United States, including those of the Federal
Securities and Exchange Commission, whether by the grantee or otherwise; excluding
therefrom, however, claims which are solely based upon and shall arise solely
out of information supplied by the county to the grantee in writing and included
in the offering materials with the express written approval of the county
prior to the offering.
C.
Defense of indemnitees. In the event any action or proceeding
shall be brought against the indemnitees by reason of any matter for which
the indemnitees are indemnified hereunder, a grantee shall, upon notice from
any of the indemnitees, at the grantee's sole cost and expense, resist
and defend the same with legal counsel mutually acceptable to the County Attorney
and grantee; provided, further, however, that the grantee shall not admit
liability in any such matter on behalf of the indemnitees without the written
consent of the County Attorney or the County Attorney's designee. The
county and indemnitees shall not settle without the grantee's consent.
D.
Notice, cooperation and expenses. The county shall give
a grantee prompt notice of the making of any claim or the commencement of
any action, suit or other proceeding covered by the provisions of this section.
Nothing herein shall be deemed to prevent the county from cooperating with
the grantee and participating in the defense of any litigation through the
County Attorney. A grantee shall pay all reasonable expenses incurred by the
county in defending itself with regard to any such actions, suits or proceedings.
These expenses shall include all out-of-pocket expenses, such as attorney
fees, and shall also include the reasonable value of any services rendered
by or on behalf of the County Attorney if such service is determined necessary
and appropriate by the County Attorney. No recovery by the county of any sum
under a letter of credit, surety bond, performance bond or security deposit
shall be any limitation upon the liability of the grantee to the county under
the terms of this section, except that any sum so received by the county shall
be deducted from any recovery which the county might have against the grantee
under the terms of this section.
E.
Nonwaiver of statutory limits. Nothing in this agreement
is intended to express or imply a waiver of the statutory provisions, of any
kind or nature, as set forth in Maryland Statutes, including the limits of
liability of the county as it exists presently or may be increased from time
to time by the Legislature.
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, income or sex. 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 Federal Communications Commission, 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 a franchise agreement.
Minimum public notice of any public meeting relating to a franchise
shall be made as prescribed by the County Council.
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. This record shall be available for inspection by
the county at the local office of the grantee during regular office hours.
A.
New construction timetable.
(1)
Within two years from the date of the award of a franchise
to an initial grantee, such grantee must make cable television service available
to every dwelling unit within the initial service area.
(a)
The grantee must make cable television service available
to at least 20% of the dwelling units within the initial service area within
six months from the date of the award of its initial franchise.
(b)
The grantee must make cable television service available
to at least 50% of the dwelling units within the initial service area within
one year from the date of the award of its initial franchise.
(2)
A grantee, in its application, if any, may propose a
timetable of construction which will make cable service available in the initial
service area sooner than the above minimum requirements, in which case the
said schedule will be made part of a franchise agreement, and will be binding
upon the grantee.
(4)
In special circumstances, the county can waive 100% completion
within the specified time frame, provided substantial completion is accomplished
within the allotted time frame, substantial completion construed to be not
less than 95%, and justification for less than 100% must be submitted subject
to the satisfaction of the county.
B.
Line extensions.
(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. A grantee
is hereby authorized to extend the cable system as necessary within the county.
To expedite the process of extending the cable system into a new subdivision,
the county 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 end 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 county that the first home in the project has been approved for 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.
(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 shall 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 5% of those gross revenues are paid to the county as franchise fees under § 119-27.
(1)
A grantee, in its application, may propose a line extension
policy which will result in serving more residents of the county than as required
above, in which case the grantee's 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 county, upon request,
with a written report of the results of the grantee's annual 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 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.
(8)
In all areas of the county 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.
A.
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 county may deem proper to make, or unnecessarily hinder or
obstruct the free use of the streets, alleys, bridges, easements or public
property.
B.
Before commencing construction in, above, over, under,
across, through or in any way connected with the streets, public ways or public
places of the county (other than such public areas not under the county's
control), the grantee shall obtain all required permits which the 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 county, which approval shall not be unreasonably withheld or delayed.
C.
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 a grantee or any person acting
on its behalf, a grantee shall, at its own cost and expense and in a manner
approved by the county, 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 county.
D.
A 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 B and C, and obtaining all required street opening or other permits.
E.
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.
F.
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 county because of: street or other public excavation;
construction; repair; regrading or grading; traffic conditions; installation
of sewers, drains, or water pipes; county-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.
G.
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 county 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 county determines that the public convenience would
be enhanced thereby.
(2)
Where poles or other wire-holding structures already
existing for use in serving the county are available for use by a grantee,
but it does not make arrangements for such use, the county may require the
grantee to use such poles and structures if it determines that the public
convenience would be enhanced thereby 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 county 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 county may require the grantee to permit
such use for such consideration and upon such terms as the county shall determine
to be just and reasonable, if the county determines that the use would enhance
the public convenience and would not unduly interfere with the grantee's
operations.
H.
Relocation of the facilities. If at any time during the
term of a franchise the county 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 county, 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.
I.
Cooperation with building movers. A grantee shall, on
the request of any person holding a building moving permit issued by the county,
temporarily raise or lower its wires to permit the moving of buildings. The
expense of such temporary removal, raising or lowering of wires shall be paid
by the person requesting the same, 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.
A.
A grantee shall put, keep and maintain all parts of a
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 or other operations
to interfere with 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 county 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 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, the customer will
receive a busy signal less than 3% of the total time that the 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 of initial notification. All other regular
service requests will be responded to within 48 hours. 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 consumer. 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.
Customer service centers and bill payment locations 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's cable
service, the following shall apply:
(1)
After proper notification to a grantee, 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.
(2)
For outages of seven days or more in one month which
have been properly reported to a grantee and which are within the reasonable
control of a 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 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
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 Federal Communications Commission, the United States
Congress, or the State of Maryland.
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 county find, by resolution, that a grantee has failed
to maintain these technical standards and quality of service, the grantee
shall be required to implement a plan for resolution.
R.
A grantee shall keep a monthly service log 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. This log shall be made available for periodic inspection
by the county.
S.
All personnel of a grantee contacting subscribers or
potential subscribers outside the office of a grantee must be clearly identified
as associated with the grantee.
T.
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 county may impose a monetary penalty
of $250 per quarter upon the grantee. Prior to imposition of the penalty,
the county 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 county. In the alternative, a grantee shall have
the right to request a hearing affording due process before the full 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. The notice 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 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 county 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 county, 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.
If a grantee fails to operate a system for seven consecutive
days without prior approval of the county or without just cause, the county
may, at its option, operate the system or designate an operator until such
time as the grantee restores service under conditions acceptable to the county
or a permanent operator is selected. If the county is required to fulfill
this obligation for a grantee, the grantee shall reimburse the county for
all reasonable costs or damages in excess of revenues from the system received
by the county that are the result of the grantee's failure to perform.
A.
The County Executive, or his designee, shall have primary
responsibility for the continuing administration of a franchise and implementation
of complaint procedures.
[Amended 10-17-2006 by Bill No. 2006-11]
B.
During the term of a franchise, and any renewal thereof,
a grantee shall maintain 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
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.
Testing.
(1)
To the extent permitted by applicable law, the county
shall have the right and authority to require a grantee to test, analyze and
report on the performance of its system, provided that the county 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 county in performing such testing
and shall prepare results and a report, if requested, within 30 days after
notice. 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)
The county may require that tests be observed by an independent
person of the county's choice. Should such a test prove that the a 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 county shall bear that cost.
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 hereof or applicable
state and federal laws, rules and regulations.
A.
For the reason that the streets of the county to be used
by a grantee in the operation of its system within the boundaries of the county
are valuable public properties acquired and maintained by the county 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
county an amount equal to 5% of the grantee's gross revenue. If the statutory
limitation on franchise fees of 5% 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 county 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 county 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 county and the
grantee.
D.
The county 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
five days' prior notice to the grantee. Any additional amount due to
the county as a result of the audit shall be paid within 30 days following
written notice to the grantee by the county, which notice shall include a
copy of the audit report. Unless required by law, the county 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 county gains access to in connection
with the provisions of this subsection.
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 US Internal Revenue Service for late tax payments and a grantee shall
reimburse the county for any additional expenses and costs incurred by the
county 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 county. A grantee may, however, transfer or assign a franchise to any affiliate (as defined in § 119-2) 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 county and must agree to comply with all provisions of the franchise. The county 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 county. The county 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 aforementioned information, unless the requesting party and the county agree to an extension of time.
B.
A grantee shall promptly notify the county 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 § 119-28A shall make a franchise subject to revocation unless and until the county 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 county may inquire into the qualifications of the prospective controlling party and such other matters as the county deems pertinent to its approval, and a grantee shall assist the county in such inquiry.
C.
The consent or approval of the county to any transfer
of a grantee shall not constitute a waiver or release of the rights of the
county 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 county
will not approve 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 county 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 county upon 30 days' prior written request.
(1)
An annual review or progress report submitted by a grantee
to the county;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 395-A (or successor form) or any
supplemental forms related to equal opportunity or fair contracting policies;
(4)
Subscriber inquiry/complaint resolution data; and
(5)
Periodic construction update reports including, where
appropriate, the submission of as-built maps.
Copies of all petitions, applications, communications and reports either
submitted by a grantee to the Federal Communications Commission, 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 county upon request.
A grantee shall file annually with the county, 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 notice by the county, remove at its
own expense all designated portions of its cable television system from all
streets and public property within the county. If a grantee fails to do so
within one year of notice, the county 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 system shall maintain a plant having the technical
capacity for two-way communications.
C.
At the county'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 governmental
uses;
(4)
Provided, however, that these uses may be combined on
one or more channels until such time as additional channels become necessary
in the opinion of the county, unless otherwise provided in a franchise agreement.
Financial and technical support, replacement and maintenance of equipment
of this facility shall be separately incorporated into a 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 county. The county 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 the capacity which will permit the county, 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 county
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
public, educational, and governmental access programming. Such interconnection
shall be made within a reasonable time limit to be established by the county.
(1)
Interconnection procedure. Upon receiving the directive
of the county 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 county may rescind its order to interconnect
upon petition by the grantee to the county. The county 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 county,
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 county.
(4)
The full cost of an interconnection link shall be borne
by the county, if the interconnection is being made at the direction of the
county. However, the full cost of this link shall be borne by the participating
companies, in the event that the interconnection is being made for any reason
other than at the direction of the county.
(5)
A grantee shall periodically gauge programming preferences
of its subscribers.
A.
In addition to the inherent powers of the county to regulate
and control a cable television franchise, and those powers expressly reserved
by the county or agreed to and provided for in a franchise agreement, the
right and power is hereby reserved by the county 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.
B.
The county may also adopt such regulations at the request
of a grantee upon application.
A.
The county 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 county 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 county to notify
its subscribers of all such evaluation sessions by announcements on at least
one channel of its system between the hours of 7:00 p.m. and 9:00 p.m., for
five consecutive days 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 county rules.
E.
Members of the general public may add topics either by
working through the county or the grantee or by presenting a petition. If
such a petition bears the valid signatures of 50 or more residents of the
county, the proposed topic or topics shall be added to the list of topics
to be discussed at the evaluation session.
A.
In addition to all other rights and powers retained by
the county under a franchise or otherwise, the county 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 county 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 county or its subscribers or customers;
(3)
Failure to begin or complete system construction or system extension as provided under § 119-20;
(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 interrupted service, except when approval of such interruption is obtained
from the county; 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 County Executive 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 county that the corrective
action has been taken or is being actively and expeditiously pursued, the
County Executive may place the issue of termination of a franchise before
the County Council. The county 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 County Council
is to consider.
[Amended 10-17-2006 by Bill No. 2006-11]
D.
The County Council shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine in its discretion
whether or not any violation by a grantee has occurred.
E.
If the County Council shall determine the violation by
a grantee was the fault of the grantee and within its control, the Council
may, by resolution, declare that the franchise of the grantee be terminated
unless there is compliance within such period as the 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.
Any franchise shall 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 county'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 county may revoke the franchise, following a public hearing
before the 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 county has approved the transfer of the franchise
to the successful bidder; and
(2)
The successful bidder has covenanted and agreed with
the county 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 as per 47 U.S.C. § 547, shall apply to the right of acquisition by the county. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B below 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 herein, the county, at its election and upon the payment to a grantee of a price equal to the fair market value, shall have the right to purchase and take over a system upon resolution by the County Council. If the county has denied a grantee's petition for renewal of its franchise as provided by § 119-7, the county must exercise its option to purchase the system within 60 days of the denial of renewal. Nothing shall prohibit a grantee in the event of the election of the county to purchase a system from requesting a court to set a reasonable bond of the county to secure the purchase price, which is to be in immediately available funds at the time of purchase. A grantee shall execute such warranty deeds and other instruments as may be necessary.
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 county, then as soon as possible following knowledge thereof, the grantee
shall notify the county of the point of conflict believed to exist between
such regulation or law and the laws or regulations of the county or this chapter.
B.
If the county determines that a material provision of
this chapter is affected by any subsequent action of the state or federal
government, the county shall modify any of the provisions herein 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
county.
B.
Gratuities and payments to permit service 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
service.
C.
Penalties and charges to tenants for service 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 communication service from a grantee operating under a valid and existing
cable communication franchise issued by the county.
D.
Reselling service prohibited. No person shall resell,
without the expressed, written consent of the county, any cable service, program
or signal transmitted by a grantee under a franchise issued by the county.
E.
Protection of property permitted. Nothing in this chapter
shall prohibit a person or the county 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.
Risks assumed by grantee. 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.
A written application shall be filed with the county
for grant of an initial franchise or modification of a franchise agreement
pursuant to 47 U.S.C. § 545.
B.
To be acceptable for filing, a signed original of the
application shall be submitted together with 12 copies. The application must
be accompanied by any required application filing fee, conform to any applicable
request for proposals, 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 county for public inspection.
D.
A person may apply for an initial franchise by submitting an application containing the information required in § 119-41E. Upon receipt of such an application, the county may either evaluate the application pursuant to § 119-41D(3), conducting such investigations as it deems necessary; or issue a request for proposals (RFP), 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 party. The RFP may contain a proposed franchise agreement.
(1)
An applicant shall respond to a RFP by filing an application within the time directed by the county, providing the information and material set forth in § 119-41E. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant. Any applicant that has already filed materials pursuant to § 119-41D(2) herein need not refile the same materials with its RFP response, but must amplify its application to include any additional or different materials required by the RFP. The county 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 § 119-41E and requesting an evaluation of that application pursuant to § 119-41D(3). Prior to evaluating that application, the county may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in § 119-41D(3) and may seek additional applications.
(3)
In evaluating an application for a franchise, the county
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 county;
(b)
Whether the quality of the applicant's service under
any existing franchise in the county, including signal quality, response to
customer complaints, billing practices, and the like, 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 county 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 § 119-41D(3)(d), the applicant will provide adequate public, educational, and governmental 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;
(g)
What effects a grant of the application may have on competition
in the delivery of cable service in the county.
(4)
If the county finds that it is in the public interest
to issue a franchise considering the factors set forth above, and subject
to the applicant's entry into an appropriate franchise agreement, it
shall issue a franchise. If the county denies a franchise, it will issue a
written decision explaining why the franchise was denied. Prior to deciding
whether or not to issue a franchise, the county may hold one or more public
hearings or implement other procedures under which comments from the public
on an application may be received. The county also may grant or deny a request
for a franchise 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 denial of its application
or the issuance of a franchise to another.
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 county 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 services.
(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 county, and how the applicant
will provide adequate public, educational, and governmental access channel
capacity, facilities, or financial support to meet the community's needs
and interests.
(11)
Pro forma financial projections 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 county may request
of the applicant that is relevant to the county'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.
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 Section 625 of the Cable Act, 47 U.S.C. § 545, and if so, a demonstration
that the requested modification meets the standards set forth in 47 U.S.C.
§ 545;
(4)
Any other information that the applicant believes is
necessary for the county 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.
A.
In the event the county believes that a grantee has not
complied with the provisions of the chapter or a franchise agreement, the
county shall notify the grantee in writing specifying the nature of the alleged
noncompliance or default.
B.
A grantee shall have 60 days from the receipt of the county's notice described in § 119-42A to respond to the county, contesting the assertion of the noncompliance or default, or to cure such noncompliance or default, or in the event that, by nature of the noncompliance or default, such noncompliance or default cannot be cured within the sixty-day period, initiate reasonable steps to remedy such noncompliance or default and notify the county of the steps being taken and the projected date that they will be completed.
C.
In the event a grantee fails to respond to the county’s notice described in Subsection A above, or in the event a grantee responds contesting the alleged noncompliance and the county determines after a due process hearing that the grantee is in noncompliance and that noncompliance is not cured within the times set forth in Subsection B above, or in the event that the alleged noncompliance or default is not remedied within the 60 days or the date projected pursuant to Subsection B above, monetary penalties of up to $100 per day for each day that a violation occurs may be assessable by the County Executive against a grantee in addition to any amounts otherwise due, and shall be chargeable to the grantee’s surety bond, letter of credit, performance bond or security deposit. In the alternative, the county may seek legal or equitable relief from any court of competent jurisdiction.
[Amended 10-17-2006 by Bill No. 2006-11]
D.
Unless otherwise provided in this chapter, a grantee
shall pay any penalty assessed in accordance with this chapter within 14 days
after receipt of notice from the county of such penalty.
E.
To the extent that penalties are applied to a grantee under this § 119-42, a grantee shall not be subject to liquidated damages payable to the county for the same violation.
F.
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.
