City of Geneva, NY Multichannel Service Providers

Provides cable television service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system; or

Otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

CABLE SERVICE

The one-way transmission to subscribers of video programming or other programming service; and

CABLE SYSTEM or CABLE TELEVISION SYSTEM

Subscriber interaction, if any, or other programming which is required for the selection of such video programming service.

A facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video, voice or data programming, and which is provided to multiple subscribers within the city. However, such terms do not include the following:

A facility that serves only to retransmit the television signals of one or more broadcast stations;

A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control or management unless such facility or facilities uses any public rights-of-way;

II of the Communications Act of 1934, except that such facility shall be considered a cable system [other than for purposes of Section 621(c) of the Cable Actshall be considered a cable system [other than for purposes of Section 621(c) of the Cable Act — codified at 47 USC 541] to the extent such facility is used in the transmission of video, voice or data programming or service directly to subscribers; or

Any facilities of any electric utility used solely for operating its electric utility.

CHANNEL

A band or group of frequencies in the electromagnetic spectrum, or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available), which has the technical ability to carry a video signal in the National Television Systems Committee (NTSC) or similar format, or in any format devised or approved in the future by the Federal Communications Commission (FCC), or an audio, voice or data signal. All video channels shall include their vertical blanking intervals, all other video components, all aural components, including subcarriers, and all closed-captioning intended for reception by the hearing impaired and others. Such shall be transmitted and provided to subscribers on the multichannel system, unless the operator deletes them in accordance with FCC, copyright and other applicable rules.

COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE

Where appropriate and feasible, the MCS provider may employ signal enhancing technologies, such as ghost-canceling or audio-leveling. The franchisee or other MCS provider may delete signal enhancing technologies from the broadcast signal, if instead the franchisee or other MCS provider employs such enhancements at its system headend or hub. "Channel" shall also means discrete segments of bandwidth reserved for the provision of multichannel service, including but not limited to data transmissions and other communications services, even if a different bandwidth is used than that used to provide video programming.

CHARGE

A one-time or non-regularly occurring cost paid by the subscriber, and which is associated with the installation, maintenance, service or repair of the multichannel service.

CITY

The City of Geneva, New York.

CITY COUNCIL

The City Council for the City of Geneva, New York which is the legislative body for the City of Geneva, New York. For purposes of clarification, the "City Council" or "city" is the franchising authority for the City of Geneva, New York.

CITY MANAGER

The City Manager of the City of Geneva, New York.

COLLECTION CHARGE

A charge or fee assessed on a customer or subscriber by an MCS provider for efforts at collecting, or attempting to collect, a past due and/or delinquent account.

COLLECTION CHARGE

A charge or fee imposed on a customer or subscriber by an MCS provider for such provider's efforts at collecting, or attempting to collect, a past due and/or delinquent account.

The same meaning in this chapter and any franchise agreement or other agreement, license or permit as is defined and applied under the United States' Uniform Commercial Code (UCC).

COMPLAINT

Any verbal or written claim of dissatisfaction with the multichannel service, other communications services or operations of the franchisee or other MCS provider that are permitted to be regulated under this chapter, including but not limited to matters of signal quality and billing, that are made by a person to either the franchisee or other MCS provider or the MCS administrator, and which requests or requires corrective action by the franchisee or other MCS provider to its multichannel services, other communications services or operations over the multichannel system, or to any portion of the system, or any necessary investigation subsequent to a service call, research and/or additional service call or work activity, such as the delivery or replacement of a remote control device, converter or other equipment, as may be undertaken by a franchisee or other MCS provider, its employees or agents.

COMPLETE or COMPLETION

With respect to any construction, reconstruction, rebuilding or upgrading of the system means that in each instance:

Attachment strand has been put in place for aerially serviced areas and all needed cable has been lashed to said strand; or

In areas serviced underground, that all cable has been placed correctly in trenches, the trenches have been refilled, all road disturbed surfaces have been restored and all landscaping restoration has been completed as required.

"Complete" or "Completion" further means that all amplifier housings and modules have been installed (including modules for return path signals if bidirectional activation has been proposed or committed to);

That primary and backup/standby power supplies have been installed and operate properly;

(e)

That all bonding and grounding has been completed; that construction or reconstruction of the headends or hubs has been completed and all necessary processing equipment has been installed therein; and

(f)

That any and all other construction or reconstruction necessary for the multichannel system to deliver multichannel service to subscribers has been completed, including the initial installation, or in a rebuild or upgrade of the system, the replacement of drops to each and every subscriber unit passed if such is needed or proposed, pursuant to the plans, specifications, representations and commitments submitted to and approved or accepted by the city.

Before connecting new or technologically upgraded service to any subscriber, the franchisee or other MCS provider shall conduct and complete proof of performance tests on each new or technologically upgraded portion of the multichannel system, and shall demonstrate to the city's satisfaction compliance with the FCC's technical standards. Multichannel services provided to segments of less than the entire multichannel system will be activated when the proof of performance is completed and never before.

Any significant construction, reconstruction, upgrade or rebuild of any portion of the multichannel system will not be considered complete until proof of performance tests have been conducted on such segment (or in the case of the entire multichannel system, on all segments of the multichannel system), in compliance with the signal quality requirements of the FCC's technical standards. Any performance characteristics of any segment which are found not to comply with said technical standards must have been corrected before construction is deemed complete.

FIBER CABLE or FIBER OPTIC CABLE OR FIBER

The term "completion," in relation to the construction or reconstruction, upgrade or rebuild does not include marketing and installation of subscriber service. Furthermore, construction, reconstruction, upgrade or rebuild shall not be deemed complete unless and until all customers or subscribers in any portion or area being constructed, reconstructed, upgraded or rebuilt are able to receive all multichannel services offered, whether or not individual services or levels of service are subscribed to. Further, construction, reconstruction, upgrade or rebuild shall not be deemed complete until the wreck out or removal of the old segments of the multichannel system has been completed to the reasonable satisfaction of the city.

CONSUMER

See "subscriber."

CSR

Customer or subscriber service representative.

CUSTOMER

A subscriber or user of the services and/or facilities of the multichannel system provided by an MCS provider.

DIMINUTION OF SIGNALS

Any partial loss, or visible degradation, of multichannel service or other communications services (under normal operating conditions), including the partial loss or degradation or disruption of picture, sound, voice or data on one or more channels, regardless of the duration of such degradation or disruption. With respect to multichannel services, diminution of signal may be detected by the presence of snow, lines, bars, ghosting or any other objectionable and visually discernible disruption or interference, or other manifestation not contained within the signal received by the MCS provider, or prior to its introduction or entry into the system, which leads to or causes the unusable, inconsistent, erratic or unreliable provision of services. As diminution of signals can occur even when the system is in compliance with FCC technical standards, the subscriber shall be the determiner of whether a diminution of signals is being experienced, so long as the manifestation is visually discernible without magnification, other than eye glasses.

DISASTER EMERGENCY

An imminent, impending or actual natural or humanly induced situation wherein the health, safety or welfare of the residents of the city is threatened. A disaster emergency (by illustration) may include a severe climatic or meteorological storm of any kind, dam failure, flood, tornado, hazardous waste infiltration, fire, petroleum, explosion or aircraft crash.

DOWNGRADE

A change in the level of a subscriber's multichannel service from a more comprehensive level of multichannel service (in terms of services or channels provided), to a less comprehensive level of multichannel service (in terms of services or channels provided).

EASEMENT

Any public easement or other compatible use created by dedication, or by other means, to the city for public utility purposes or any other purpose whatsoever, including cable television, or any multichannel service. Easement shall also include a private easement used for the provision of cable service or any other multichannel service.

FCC

The Federal Communications Commission and/or such other federal regulatory agency as now or in the future may have jurisdiction to oversee MCS providers.

FCC RULES

The rules and regulations adopted from time to time by the FCC, pursuant to the Communications Act of 1934, as amended, or other applicable federal law.

FCC TECHNICAL STANDARDS

The technical standards of the Federal Communications Commission (e.g., as set forth in Part 76, Subpart K (Technical Standards) of the FCC's Rules, 76 CFR 76.601 et seq., as amended from time to time.)

Very thin and pliable cylinders, or strands of glass or plastic, or any future functional equivalent, used to carry wide bands of multiple frequencies.

FRANCHISE

The initial authorization or subsequent renewal granted by the city in order for a person to construct, operate and/or maintain a franchised MCS system in all, or part, of the city.

FRANCHISE AGREEMENT

The separate contract by which the city grants an MCS provider the right to operate a franchised multichannel system within all, or a part, of the city, in accordance with the city's franchising authority. A franchise, other agreement, license or permit may be, and can be expected to be, different in scope and content from other permissible grants of authority, according to applicable law.

FRANCHISED MCS PROVIDER

A person that is awarded a franchise, other agreement, license or permit by the city to construct or operate a franchised multichannel system, within all, or part, of the city. The term "franchised MCS provider" specifically includes the term "cable operator," but is not limited to such.

FRANCHISE EXPIRATION or FRANCHISE AGREEMENT EXPIRATION

The date of expiration, or the end of the term of a franchised MCS provider's franchise, other agreement, license or permit.

FRANCHISEE OR OTHER MCS PROVIDER

Any multichannel service provider that has been granted a valid franchise agreement, or other agreement, license or permit by the city, and that is subject to local regulatory authority as set forth in this chapter, in whole or in part, as represented by any section or combination of sections of this chapter.

FRANCHISE FEE

The amount charged a multichannel system provider by the city for the cost of administering and enforcing the franchise, other agreement, license or permit, and for the maintenance of the public property and rights-of-way occupied by the multichannel system, on a reasonably pro-rata basis with respect to the percentage of space used by all other coextensive occupants or providers of utility or utility-like services that occupy the public property and rights-of-way.

FRANCHISING AUTHORITY

City Council for the City of Geneva, New York.

FUNCTIONAL EQUIVALENT or FUNCTIONALLY EQUIVALENT

With respect to a specifically-named piece of multichannel system equipment, means another piece of multichannel system equipment that:

Has either the same or substantially similar characteristics, qualities, operational capabilities, design functions as the original, specifically-named or referenced piece of multichannel system equipment;

Operates in substantially the same form and fashion as the original, specifically-named or referenced piece of multichannel equipment; or

Operates in a technologically superior manner to the original, specifically-named or referenced piece of multichannel equipment.

With respect to matters not involving equipment, the term also means something that equates to or is intended to effect the same or a substantially similar outcome or function in effectively the same manner or for the same purpose.

GROSS REVENUE

For any period of time, any and all revenues or other valuable consideration of any kind whatsoever, which are derived directly or indirectly from the operation of the multichannel system within the city, and that are attributable to, or are occasioned by, the grant of the franchise, other agreement, license or permit, regardless of the familial or organizational relationship with the franchisee, licensee or permittee. There shall be permitted to be deducted from gross revenues:

Bad debts actually written off by franchisee or other MCS provider in the normal course of its business; provided, however, that subsequent recovery of bad debts previously deducted shall be included in gross revenue; and

Refunds made to subscribers or other third parties.

Gross revenues shall not include:

Any revenue specifically exempted by the Federal Cable Act, state law, or by federal or state judicial ruling, or by specific FCC ruling. For any revenue the MCS provider seeks to exempt, the MCS provider shall have the burden of proving to the city that any such excluded revenue is specifically exempted by the Cable Act, state law, federal or state judicial ruling, or by specific FCC ruling. Including, but not limited to the above, gross revenues shall not include the following:

Any tax of general applicability imposed upon a franchisee or other MCS provider or upon the franchisee's or other MCS provider's subscribers by state, federal or any other governmental entity and required to be collected by the franchisee or other MCS provider and passed through to the taxing entity (including, but not limited to, user taxes, service taxes and communications taxes), provided that such taxes are identified as a separate line item on subscriber statements;

Any revenue received by the franchisee or other MCS provider from any person for services not attributable in whole or in part to the operation of its multichannel system or to other communications services serving the city, including but not limited to revenue derived from electronics retailing, mail marketing or telephone answering services which do not rely upon the use of the franchisee's or other MCS provider's multichannel system or other communications services, delivery services and video production services for programming or other communications services which are not transmitted over or used in conjunction with the system; and

Any revenue which franchisee or other MCS provider chooses not to receive in exchange for its provision of free or reduced-cost multichannel services or other communications services to any person. However, such revenue which is not included due to franchisee's or other MCS provider's decision not to receive in exchange for trades, barters, services or other items of value shall be included in gross revenues.

In computing gross revenues from sources other than subscriber revenue of a franchisee or other MCS provider, and that is attributable to the grant of a franchise, other agreement, license or permit, or the operation of franchisee's or other MCS provider's multichannel system both inside the city and outside the city, the total or aggregate revenue received by a franchisee or other MCS provider from such sources shall be computed as follows: said revenues shall be multiplied by a fraction, the numerator of which shall be the number of franchisee's or other MCS provider's subscribers in the city as of the last day of the required payment period and the denominator of which shall be the number of subscribers within all areas served by a franchisee's or other MCS provider's system as of the last day of the required payment period. The result shall then be multiplied by the percentage used to compute franchise, other agreement, license or permit fees. For purposes of example only, the following are types and sources of nonsubscriber revenue intended to be included in gross revenue.

Subscriber lists;

The sale of advertising;

Home shopping services;

INITIAL ACTIVATION or INITIALLY PROVIDING MULTICHANNEL SERVICE, THE INITIAL PROVISION OF MULTICHANNEL SERVICE

Commissions or bonuses of any kind from vendors or programmers;

(e)

Rebates from programmers and vendors of any kind;

(f)

Viewing guide sales; and

(g)

The lease of channel capacity.

HEADEND

The electronics control center, where incoming signals, including those of television broadcast stations are amplified, modulated, filtered, converted or in any way processed or converted for redistribution to subscribers.

IMPRACTICABLE

Which used in a noneconomic or nonfinancial or noncommercial context, shall have the meaning ascribed in the most current edition of Webster's Encyclopedic Unabridged Dictionary of the English Language.

With respect to a particular portion, part or segment of the multichannel system, or group of segments or the entire multichannel system, that all proposed multichannel services and multichannel system capabilities, as stated in a franchise agreement or other agreement, license or permit, or in any proposal that is by reference included in any a franchise agreement or other agreement, license or permit, are available, and that the construction, reconstruction or upgrade has been completed (see definition of "complete") and the completed segment or segments in question, or the entire system, is capable of actually delivering multichannel services to each and every subscriber in every segment, pursuant to the plans and specifications as may have been approved by the city.

INSTALLATION CHARGE or CONNECTION FEE

That charge or fee imposed on a subscriber for the initial installation or reconnection of service, or relocation of equipment necessary to obtain or use multichannel services or other communication services.

INTERNET

That interconnected combination of networks that evolved from the original ARPANET experiment and the National Science Foundation subsidized Internet.

INTERNET

An interconnection of networks that provides user-to-user or address-to-address communications or data transmissions.

INTERNET ACCESS

The availability of access to a subscriber of the Internet.

LATE CHARGE

A charge which is added to a customer or subscriber's account or bill for nonpayment of a previously due and currently delinquent account.

LEASED ACCESS CHANNEL

The channel capacity a franchisee or other MCS provider is required by federal law to designate for use by commercial endeavors or purposes and that are not affiliated with the franchisee or other MCS provider, pursuant to Section 612 of the Communications Act of 1934, as amended.

LINE EXTENSION

An extension of the multichannel system beyond the original primary service area of the system requiring additional trunk or feeder cable, or both, or additional fiber optic distribution cable, or additional active electronic devices to amplify the signal, or an additional fiber node, but does not include individual service drops beyond 200 feet that may require additional feeder cable.

LOCAL ORIGINATION PROGRAMMING

Programming produced locally by or for a franchisee or other MCS provider.

LOSS OF SERVICE or OUTAGE

The complete loss of picture and sound on either the lower tier of service, or on all tiers or levels of service, that is attributable to or occasioned by problems with the operation of the system or any components of the system. Further, more than one instance of a loss of service from the same portion of the system, or affecting the same address or addresses, within the city that occurs within a twenty-four-consecutive-hour period shall be deemed a single, continuous loss of service. The time used to measure the duration of the loss of service shall be from the time of the first reported loss of service to the restoration of the last reported loss of service.

MANAGER

The City Manager of the City of Geneva, New York.

MCS

Multichannel service.

MCS PROVIDER OR MULTICHANNEL SERVICE PROVIDER

Any person or group of persons who:

Provides multichannel service or other communications over a multichannel system, regardless of the technology employed and, subject to federal and state preemption or limitation, directly or indirectly owns a significant interest in such multichannel system; or

Otherwise controls or is responsible for, through any arrangement, the management and operation of such a multichannel system.

MULTICHANNEL PROGRAMMING SERVICE OR MULTICHANNEL SERVICE

The term "MCS provider" or "multichannel service provider" specifically includes the terms "cable operator" and "SMATV operator" and any other provider of a similar multichannel service that under federal law is subject to this chapter in whole or in part.

The one-way transmission to subscribers of video programming, or other programming service, irrespective of the technology employed and subject to federal and state preemption or limitation; and

MULTICHANNEL SERVICE PROVIDER or MCS PROVIDER

Subscriber interaction, if any, used in or for the selection of such video programming or other programming service.

Any person who provides multichannel services or other communication services using a multichannel system.

MULTICHANNEL SERVICES

The transmission of video programming and other programming or data transmission services, interactive services and other broadband information services to and/or from subscribers and that is generally made available to subscribers, together with subscriber interaction functions which may be necessary for the selection of programming or transmission of information. However, multichannel services shall not include "other communications services" as defined in this section.

MULTICHANNEL SYSTEM

A facility consisting of closed, bidirectionally capable transmission paths and associated signal reception, generation, distribution and control equipment that is designed and intended to provide multichannel services and other communications services to subscribers within the city;

A facility consisting of infrared transmission or point-to-point transmission (as permitted by law); or

Any functional equivalent system, along with all equipment, facilities and components used in the reception, generation or distribution of service, that is designed to provide multichannel service which includes video, voice or data programming to multiple subscribers within the city.

However, such term does not include the following:

A facility that serves only to retransmit the television signals of one or more broadcast stations;

A facility that serves only subscribers in one or more multiunit dwellings under common ownership, control or management unless such facility or facilities uses any public rights-of-way;

II of the Communication Act of 1934, except that such facility shall be considered a multichannel system [other than for purposes of Section 621(c) of the Cable Act considered a multichannel system [other than for purposes of Section 621(c) of the Cable Act — codified at 47 USC 541] to the extent such facility is used in the transmission of video, voice or data programming or service directly to subscribers; or

Any facilities of any electric utility used solely for operating its electric utility.

However, such facility shall be deemed a multichannel system to the extent that it:

Is used in the transmission or distribution of video programming directly to subscribers; or

NORMAL OPERATING CONDITIONS

Any facility of an electric utility used to distribute video programming directly to subscribers within the city.

Those conditions which are reasonably within the control of the MCS provider with respect to the operation and maintenance of the system and the provision of service using the system. Those conditions which are not within the control of the MCS provider include, but are not limited to, strikes, labor strikes, sabotage, riots or civil disturbances of a disastrous nature and effect, explosions, acts of public enemies, unusually severe or catastrophic weather conditions, natural disasters as declared by appropriate government officials, fires and widespread commercial power failures that exceed the capabilities of the backup power supplies of the system, or communication facilities failures used in the receipt of programming.

OTHER COMMUNICATIONS SERVICES

Those conditions which are deemed within the control of the MCS provider include, but are not limited to, financial situations other than the declaration of bankruptcy or insolvency, marketing promotions, loss of standby power up to the period of time for which the manufacturer has rated the standby power unit to operate, rate increases, regular or periodic periods of high demand with respect to labor intensive functions, the regular inspection and maintenance of the system, required testing of the system, the timely remedy of safety and other code violations, and the timeliness and technological design with respect to any upgrade of the system.

ORDINANCE

The Multichannel Service Provider Regulatory Ordinance for the City of Geneva, New York.

Those services provided by the franchisee or other MCS provider, but that do not involve the transmission to subscribers of video programming pr other multichannel services. Other communications services include, but are not limited to, telephony and voice services.

OTHER PROGRAMMING SERVICE

Information that an MCS provider (specifically including a cable operator) makes available to all subscribers generally.

PAY-PER-VIEW or PREMIUM CHANNEL or PREMIUM SERVICE

The delivery over the multichannel system of audio and/or video signals for a rate or amount (over and above the rate for basic service) on a per-event or per-program or per-channel basis.

PEG

Public, educational and governmental.

PERSON

Any individual, corporation, estate, trust, partnership, association of two or more persons having a joint common interest, joint-stock company or governmental entity.

PROPERTY

All the tangible or intangible property owned, installed, rented, leased or used by a franchisee or other MCS provider in the conduct of providing multichannel service and utilized in the operation of the system in the city.

PROPOSAL or APPLICATION

A written proposal or request by an MCS provider to provide multichannel services to residents, businesses, industries and institutions within the city. Notwithstanding the foregoing, nonwritten or verbal representations or commitments made to the City Council or its designee in relation to or in support of a written proposal shall be deemed a part of the proposal and may be relied upon as though they were written.

PSC

The Public Service Commission of the State of New York.

PUBLIC, EDUCATIONAL OR GOVERNMENTAL ACCESS FACILITIES

Channel capacity designated for public, educational or governmental use; and

REVOCATION, TERMINATION or NONRENEWAL

Facilities and equipment for the use of such channel capacity.

RATE

The periodic price paid by a subscriber for the receipt of any multichannel service provided for by an MCS provider.

RENT

The compensation paid by a multichannel service provider to the city for the occupation and use of the public property and rights-of-way used to provide service within the city.

An official act by the City Council that removes, repeals or rescinds previously approved authorization for a licensed, permitted or franchised MCS provider to operate a multichannel system within the city.

SCHEDULED OUTAGE

Any planned service interruption or diminution of signals, regardless of the number of channels affected or the duration of the outage, for which both the city and subscribers have been notified at least 48 hours in advance and that do not exceed four hours duration for any given address.

SERVICE INTERRUPTION

The loss of any tier or incremental billing level of multichannel service, or separately priced service, such as those offered on a per-channel basis, or any other multichannel or other communications service that is delivered or provided by, or attributable to or occasioned by the operation of the multichannel system or any components of the system. Further, more than one service interruption that occurs within a twenty-four-consecutive-hour period shall be deemed a single, continuous loss of multichannel service or other communications service. Failure to meet FCC technical standards at any location within the city shall be deemed a service interruption during the period of time when the multichannel service or any other communications service does not comply with FCC's technical standards. A scheduled outage is not a service interruption, provided that it does not exceed four hours duration. Two or more occurrences of a diminution of signals within any twenty-four-consecutive-hour period shall constitute a single, continuous service interruption. A scheduled diminution, provided there is forty-eight-hour advance notification to the city and subscribers, is not a service interruption.

SERVICE OUTAGE

The loss of audio and video on the basic or lowest level, tier or increment of service on the multichannel system. For purposes of credits or refunds as may be required under this chapter or any franchise, other agreement, license or permit, a "service outage" means the loss of picture or sound or other service provided by an MCS provider for which there is an individual or separate rate or charge, so as to make that level, tier or cluster of service effectively unusable in the normal and usual sense of being able to enjoy or otherwise use the service or services, and which is not caused by the failure or malfunction of a subscriber's television receiver or monitor or by the misfeasance or malfeasance of the subscriber.

SERVICE TIER

A category of multichannel service or other programming service provided by an MCS provider, and for which a separate rate is charged by an MCS provider.

SMATV

Satellite master antenna television.

SMATV OPERATOR or SATELLITE MASTER ANTENNA TELEVISION OPERATOR

Any person or group of persons who:

Provides multichannel service over an SMATV system; or

Otherwise controls or is responsible for, through any arrangement, the management of an SMATV system.

SMATV SYSTEM

A private multichannel system not crossing any public rights-of-way and which is located on private property and serving private dwellings.

STATE

The State of New York.

STREET

The surface of, and the space above and below, a public street (or any path or thoroughfare designated for vehicular and/or pedestrian traffic), or other easement now or hereafter held by the city (including any street, as defined by eminent domain) for the purpose of public travel.

SUBSCRIBER

A person lawfully receiving multichannel service or other communications service delivered by an MCS provider on a multichannel service system.

USC

United States Code.

USER

A person or organization utilizing a multichannel system and/or its equipment or capabilities for purposes of production and/or transmission of material, as contrasted with receipt thereof in the capacity of a subscriber. For purposes of an example, one type of "user" would be an advertiser or marketer.

VIDEO PROGRAMMING

Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

WRECK OUT

In the context of and with respect to any construction, rebuild, upgrade, modification or maintenance activity of a multichannel system, the removal of the old cable, wires, parts and components of any portion of the system not currently and actively used in the provision of service.

§ 227-5 Administration; delegation of powers and authority.

The City Council (or Council) is hereby designated the entity of the city that is responsible for the continuing administration of this chapter and matters related to multichannel service, including cable service, cable systems and cable operators.

Unless prohibited by federal, state (including any applicable provision of the PSC) or local law, the City Council may further delegate its powers and authority to a duly authorized representative with respect to administering this chapter or an applicable franchise, other agreement, license or permit authorizing the construction, operation and maintenance of a multichannel system, as is permissible under applicable state and federal law.

Moreover, unless prohibited by federal, state or local law, the City Council may create an appointed or elected advisory council, commission or committee which is designed to handle issues concerning multichannel service and multichannel service providers. If such a board, commission or committee is created, then a separate resolution, ordinance or document shall be adopted wherein the precise powers and authorities of the board, commission or committee shall be outlined.

However, the City Council may never delegate its initial or renewal franchising, licensing or permitting power, or power of revocation of such, to another person or representative (including any advisory council, commission or committee). Moreover, while the City Council may use an outside consultant to review any rates that are subject to the city's review under the Cable Act, the City Council nonetheless may not delegate its ultimate rate-making power to another person or representative (including an advisory council, commission or committee).

§ 227-6 Applicability of chapter to an MCS provider.

Multichannel service (MCS) provider franchise agreements or other MCS agreements, licenses or permits are subject to and shall be governed by the terms, conditions and provisions of this chapter (ordinance) and any amendments thereto. Also subject to all terms, conditions and provisions of this chapter and any amendments thereto are providers of multichannel service not otherwise subject to local franchising authority, but who are not exempted from compliance with applicable local regulatory ordinances or laws by federal or state law, rule or regulation. In the event of any conflict or ambiguity between the chapter, and any amendments thereto, and any franchise agreement or other agreement, license or permit subject to this chapter in whole or in part, or any amendments thereto, the chapter and any amendments thereto shall control, unless preempted by federal or state law, rule or regulation.

With respect to provisions classified as "consumer protection" and "customer service," and specifically those sections that are contained within this chapter, and that follow this section, that are denoted by an asterisk (*) in front of the section heading, such sections and provisions shall specifically be applicable to any and all MCS providers operating in the city, unless:

The MCS provider is exempted from the chapter, or any applicable provision thereof;

The MCS provider requests and is granted relief from any applicable provision of the chapter so designated; or

The applicability of the provision is preempted by the force of a superseding state or federal law, rule or regulation.

Moreover, such MCS provider that is providing service as of the effective date of this chapter shall be expected to comply with, and abide by, applicable consumer protection and customer or subscriber service provisions no later than the expiration of the current franchise or the grant of a new or renewed franchise.

All other provisions contained within this chapter shall be applicable to and of full force and effect 30 days after the date of adoption of this chapter with respect to any MCS provider that is not providing service as of the effective date of this chapter, unless:

The MCS provider is exempted from the chapter (or any applicable provision);

The MCS provider requests and is granted relief from any applicable provision of the chapter; or

The applicability of the provision is preempted by the force of a superseding federal or state law, rule or regulation in place at the time.

Subsections A and B of this section are not intended to repeal, and do not have the effect of repealing or modifying any current franchise, other agreement, license or permit that presently exists between the city and a franchised MCS provider.

As a result of Subsection C of this section, the provisions of this chapter shall have no effect on an existing franchise, other agreement, license or until the expiration of such existing franchise, other agreement, license or permit, or until one of the following occurs:

Prior to the expiration date of a franchise, other agreement, license or permit, the City Council and the affected franchised MCS provider either execute an amended franchise, other agreement, license or permit;

Both parties agree to a specific date for the expiration of said existing franchise, other agreement, license or permit, which in fact is prior to the present franchise, other agreement, license or permit expiration date; or

A court of competent jurisdiction orders that an existing MCS provider become subject to all, or any part or provision, of this chapter.

Notwithstanding anything to the contrary in this section, to assure the protection of the health and safety of the public, any and all MCS providers shall be subject to, and shall be required to comply with, all safety and safety-related codes of the city and this chapter, at all times, regardless of the status of any current franchise, agreement, license or permit. This shall specifically include:

The National Electrical Code;

The National Electrical Safety Code; and

Any other applicable safety and safety-related codes of the city or the state.

§ 227-7 Exemption from this chapter for certain MCS providers.

Multichannel service providers who are exempted from complying with the provisions of this chapter are as follows:

An MCS provider who is exempted from this chapter as a result of federal or state law, including a specific rule or regulation of the FCC or the PSC;

An MCS provider who is exempted from this chapter as a result of an applicable FCC ruling; or

An MCS provider who is exempted from this chapter as a result of an applicable judicial ruling, from which all subsequent permissible appeals have been exhausted or concluded.

It is expressly understood that an exempted MCS provider remains exempted only as long as it meets one or more of the criteria of this particular section.

If exempted in accordance with any of the preceding, a qualified MCS provider is exempt only from this chapter and not any other locally enforceable ordinance, law, code or regulation. Consequently, such an exempted MCS provider shall abide by, and comply with, any other applicable city, state or federal laws, rules and regulations, including any applicable federal or state consumer protection or customer or subscriber service laws, rules and regulations.

§ 227-8 Multichannel service providers seeking relief from this chapter.

Any MCS provider affected by this chapter may file a written petition, at any time, with the City Council seeking relief from one or more provisions of this chapter. An MCS provider may specifically request exemption or relief from, or delay in implementation (but as to the petitioning MCS provider only), of one or more provisions of this chapter. Also, the MCS provider may request that a specific provision of the chapter apply to such MCS provider for a specified or limited length of time or duration. The petition shall set forth the relief requested and the basis thereof with such supporting information and material as may be applicable and deemed necessary by the City Council.

Any request submitted in accordance with this section that does not contain a clearly articulated explanation or rationale for each item or matter being requested, individually, shall be deemed incomplete and returned to the petitioner without action.

In order to receive relief from one or more of the provisions of this chapter, an MCS provider must satisfactorily demonstrate to the City Council that at least one of the following facts exist:

The provision and/or requirement is expressly prohibited by federal law, the FCC, or state law, rule or regulation, including any specific rule or regulation of the PSC;

Where applicable, that the provision in question materially affects, and is in substantial conflict with an expressed right that is specifically noted in an existing franchise, other agreement, license or permit (but only for the term of the existing franchise, other agreement, license or permit). This provision covers situations where an MCS provider classified as a cable operator seeks, and is granted, modification of an existing franchise, other agreement, license or permit under Section 625 of the Cable Act (codified at 47 USC 545);

That compliance with a particular provision and/or requirement will be commercially impracticable for an MCS provider;

That one or more time frames listed in this chapter are either impossible to meet, or are impracticable to meet;

That the MCS provider has its own policy which the City Council deems comparable to, or in excess of, any provision and/or requirement from which the MCS provider seeks relief; or

That the health, safety and welfare interests of the city and the public otherwise warrant the granting of such relief.

The City Council shall be the sole determiner of whether an MCS policy is comparable to, or exceeds, a similar provision in this chapter.

As an alternative to seeking an exemption or requesting relief, an MCS provider may petition for clarification concerning the precise intent and effect that one or more provisions or sections of this chapter have on the petitioning MCS provider.

In those instances where the City Council grants an exemption or relief to a franchised MCS provider, or deems a franchised MCS provider's operational policy to be comparable to a chapter provision, then the franchise, other agreement, license or permit (initial, existing or renewal) shall be amended within 60 days to reflect the exact extent of such exemption and/or relief.

It should be specifically noted that the benefit of such exemption, relief, clarification or comparable policy extends only to the MCS provider granted such exemption, relief, clarification or comparable policy. Consequently, in the case of a transfer, assignment or sale of the system, the proposed transferee, assignee or buyer may, if required by the City Council, be required to petition separately for such relief, clarification, exemption or comparable policy substitution. For purposes of clarification, this shall mean that unlike certain other amendments to the franchise, other agreement, license or permit as may be required by law, there shall be no automatic transfer of any exemption, relief, clarification or comparable policy to a transferee of a franchise, other agreement, license or permit, or a new owner of a multichannel system.

Any MCS provider who requests relief or exemption from any portion of this chapter may be required to reimburse the city for the actual, verifiable cost of processing and analyzing such request, including but not limited to a request for a comparable policy substitution.

§ 227-9 Failure of City Council to enforce this chapter.

An MCS provider shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the City Council on any one or more occasions to seek, or insist upon, prompt compliance with such requirements or provisions.

§ 227-10 Multichannel service providers subject to present and future regulations.

Any MCS provider, its assignee or transferee shall be subject to, and expected to comply with, all applicable ordinances and/or resolutions now or hereafter adopted and in effect within the city, including this chapter, to the extent that said MCS provider has not received an exemption or relief from said ordinance(s) and/or resolution(s).

Any MCS provider, and its assignee or transferee, shall be subject to, and expected to comply with, all federal and state laws and with all rules and regulations issued by all applicable regulatory agencies (including, where applicable, the FCC and the PSC) now or hereafter in existence. However, if the city amends this chapter, and the amendment of the chapter would have the effect of either unilaterally requiring the investment of substantial new capital for equipment by the MCS provider, or unilaterally changing the process for default and/or revocation of an MCS provider's franchise, other agreement, license or permit, then such amendment of this chapter shall have no effect on the affected MCS provider until the expiration of the franchise agreement, other agreement, license or permit.

Any MCS provider, its assignee or transferee shall be subject to all lawful exercise of the city's police power, without limitation of any kind, other than as may be limited by applicable state or federal law.

With respect to future ordinances and/or resolutions noted in this section, nothing contained herein shall prevent an MCS provider from exercising any and all of its administrative and legal rights in order to challenge the constitutionality, applicability and enforceability of said future ordinances and/or resolutions.

§ 227-11 Repeal of prior inconsistent resolutions, ordinances and local laws.

Except as provided in Subsection B of this section, any prior resolution, ordinance or local law, which in part, or in whole, is directly inconsistent with this chapter is hereby repealed to the extent of the inconsistency.

Subsection A of this section is not intended to repeal, and does not have the effect of repealing, any current franchising ordinance or franchise, other agreement, license or permit that presently exists between the city and an MCS provider.

§ 227-12 Resolution of inconsistencies with federal or state rules, regulations or laws.

In any case of an actual inconsistency between any provision or section of this chapter, and any provision or section of a federal or state rule, regulation or law, then the federal or state rule, regulation or law (including any specific and applicable rule or regulation of the PSC) shall not only supersede the effect of the chapter, but also control in any local application, unless such federal or state rule, regulation or law (including any specific and applicable rule or regulation of the PSC) does not preempt, supersede or make invalid the inconsistency.

Subsection A of this section specifically includes any situation wherein an applicable federal or state judicial decision creates an actual inconsistency with any provision or section of this chapter. In such a situation, the federal or state judicial decision shall not only supersede the effect of the chapter, but also control in any local application, unless such federal or state judicial decision does not preempt, supersede or make invalid the inconsistency.

§ 227-13 Resolution of conflicts between this chapter and a subsequent franchise agreement.

Where there is a conflict (actual or apparent) between this chapter and a subsequent franchise, other agreement, license or permit, the chapter shall control and prevail, unless judicially determined invalid, unenforceable or unconstitutional by a court of competent jurisdiction, or unless the provisions of Subsection B of this section apply to the MCS provider and its franchise, other agreement, license or permit.

Where a franchised MCS provider receives an exemption, relief or clarification from one or more provisions or sections of this chapter, or has one or more of its policies deemed comparable to a provision contained in this chapter, the franchise, other agreement, license or permit shall specifically note such exemption, relief, clarification or comparable policy. As a result, to the extent that such an exemption, relief, clarification or comparable policy is both contained in a franchise, other agreement, license or permit, and is inconsistent with a provision contained in this chapter, then the specifically noted exemption, relief, clarification or comparable policy language contained in the franchise, other agreement, license or permit shall control, but only to the extent noted in the franchise, other agreement, license or permit.

Notwithstanding Subsection B of this section, any grant of exemption, relief, clarification or comparable policy shall be for the sole benefit of the owner and operator of the multichannel system as of the date of the grant of exemption, relief, clarification or comparable policy. Specifically, such grant shall not be automatically transferred along with any approved transfer or change in ownership or change in control of a franchise, other agreement, license or permit. Any transfer of exemption, relief, clarification or comparable policy shall always require a separate act of approval by City Council.

§ 227-14 Penalties for offenses; assessed charges or fines.

To the extent permitted by state and local law, including applicable provisions of the PSC regulations, the City Council reserves the authority to institute a penalties schedule for violations of this chapter. Where appropriate and/or applicable, violations of this chapter shall be handled in the manner prescribed by either local or state law, including any applicable provision of the PSC.

In instances where fines are applicable for a breach or violation of this chapter or a franchise, other agreement, license or permit, as set forth in the section of this chapter entitled "Fines," then such assessed fines shall operate as a separate and independent remedy for the city.

Notwithstanding the other provisions in this section, an MCS provider shall not be subject to such provisions in instances of force majeure (as outlined elsewhere in this chapter), and/or for a technical violation of the chapter, or where applicable, a technical breach of a franchise, other agreement, license or permit (as outlined in this chapter).

Notwithstanding the other provisions in this section, a franchised MCS provider shall be subject to possible default and/or revocation for cause as set forth in this chapter.

§ 227-15 Effect of technical violation of chapter or franchise agreement.

Notwithstanding the provisions contained in § 227-14 of this chapter, an MCS provider shall not be subject to penalties, fines, forfeitures or (where applicable) revocation of a franchise, other agreement, license or permit for a so-called "technical" violation of this chapter or (where applicable) a technical breach of a franchise, other agreement, license or permit. For purposes of this chapter, technical violations or breaches include the following:

Instances, or in matters, where a violation of this chapter or, where applicable, a franchise, other agreement, license or permit by an MCS provider was a good faith error that resulted in no or diminimus negative impact on the residents or subscribers within the city or on the city itself; or

Instances or circumstances that existed and were reasonably beyond the control of an MCS provider, including force majeure situations, and prevented an MCS provider from complying with this chapter, or where applicable the franchise, other agreement, license or permit.

§ 227-16 Force majeure.

Notwithstanding the other provisions of this chapter, an MCS provider shall not be held in violation, integral or material breach, default or noncompliance of this chapter or a franchise, other agreement, license or permit, nor suffer any enforcement or penalty relating thereto, including, where applicable, termination, cancellation or revocation of a franchise, other agreement, license or permit and/or license, where such violation, breach, default or noncompliance occurred and/or was caused by a natural disaster such as an earthquake, flood, tidal wave, hurricane or similar devastating act of nature, or any other event that is reasonably beyond an MCS provider's ability to anticipate and control that is of a devastating nature or effect. Force majeure also covers strikes, riots, wars and armed insurrections, as well as work delays caused by waiting for utility providers to service or monitor their own utility poles on which an MCS provider's cable and/or equipment is attached.

Notwithstanding Subsection A of this section and even in the case of a force majeure situation, a customer or subscriber may be entitled to a refund or credit if the customer or subscriber sustains a multichannel service outage for a period of time that is in excess of those permitted under the provisions of this chapter.

§ 227-17 Notices.

Both the City Council and each MCS provider shall provide the other party with the name and address of the contact designated to receive notices, filings, reports, records, documents and other correspondence. All notices shall be delivered to each party's contact by certified mail, return receipt requested, personal service with a signed receipt of delivery or overnight with receipt verification. All other filings, reports, records, documents and other correspondence may be delivered by any permissible means, including, but not limited to, facsimile transmission ("faxing"), personal service, overnight mail or package delivery, so long as proof of delivery is obtained. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of receipt, unless otherwise designated by state law.

If the MCS provider is required to maintain a franchise, other agreement, license or permit, then the designation of such contact person for notice and notification purposes may be contained within a franchise, other agreement, license or permit.

§ 227-18 Indemnity.

To the extent permitted by federal and/or state law, including any applicable provisions of the PSC, an MCS provider shall at all times defend, indemnify, protect, save harmless and exempt the city, the City Council, the Manager, their officers, agents, servants and employees from any and all penalty, damage or charges arising out of claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, which may arise out of, or be caused by, the construction, erection, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of the multichannel system within the city by a negligent act or omission of an MCS provider, its agents or employees, contractors, subcontractors, independent contractors or implied or authorized representatives. With respect to the penalties, fines or charges referenced herein, reasonable attorneys' fees, consultants' fees and expert witness fees are included as those costs which may be recovered by the city.

The city, the City Council and the Manager specifically reserve the right to retain counsel of their own choice, at their own expense.

If an MCS provider obtains counsel for the city, the City Council and/or the Manager, then any one of them shall have the right to approve counsel. However, neither the city, the City Council nor the Manager shall unreasonably withhold its approval of counsel.

With respect to an MCS provider's own defense of such actions noted in this section, it is understood that such MCS provider reserves the right to select and retain, without the city, the City Council or Manager's approval, counsel of the MCS provider's choice, at such MCS provider's expense.

§ 227-19 Liability insurance.

An MCS provider shall secure and maintain, for as long as it provides multichannel service to subscribers, public liability, property damage insurance and umbrella coverage in at least the following amounts:

Public liability: $1,000,000 per person/per occurrence.

Property damage: $1,000,000 per any one claim.

Umbrella liability: $3,000,000.

An MCS provider's public and personal liability and property damage insurance policy shall specifically include the city, the City Council and the Manager as additional named insureds.

The public and personal liability and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state, and which has one of the three highest or best ratings from the Alfred M. Best Company.

The public liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the City Council with at least 30 days' written notice in advance of the cancellation of the insurance.

Renewal or replacement policies or certificates shall be delivered to the City Council at least 15 days before the expiration of the insurance which such policies are to renew or replace.

Before an MCS provider provides multichannel service to subscribers, the MCS provider shall deliver the policies or certificates representing the insurance to the City Council, and each policy or certificate delivered shall be accompanied by evidence of payment of the full premium thereon.

If the state permits an MCS provider to self-insure, then the MCS provider may exercise its right to self-insure, so as long as the minimum amounts of insurance coverage outlined in this section are met and maintained for the entire period that the affected MCS provider is self-insured and the MCS provider can demonstrate to the satisfaction of the City Council that it has the reasonable financial ability to pay up to the maximum amount per category.

§ 227-20 Performance and construction/completion bonds.

An MCS provider shall furnish to the City Clerk a performance bond or security bond executed by a surety licensed to do business in this state in an amount totaling at least $25,000. The purpose of the performance bond is to ensure performance of any requirements required by and under this chapter on an MCS provider, or imposed on an MCS provider by virtue of its franchise, other agreement, license or permit. Further, the purpose is to guarantee that should the MCS provider not fulfill any obligations imposed by this chapter, or where applicable, a franchise other agreement, license or permit, then the surety will make whole any monetary losses or damages incurred by the city, up to the monetary limits of the bond or other security. If the city draws on a performance bond or cash deposit as a result of an MCS provider's failure to timely discharge its obligations, then the MCS provider shall be required to replenish the performance bond or security to the minimal level required by the City Council within 30 days.

In addition to the performance bond referenced in Subsection A of this section, an MCS provider shall furnish to the city a construction/completion bond prior to the time it commences any construction, upgrade, rebuild or repair/maintenance project that has a capital construction cost or outlay exceeding $100,000 in value. The amount of the bond shall equal at least 75% of the projected capital construction cost or outlay.

The construction/completion bond or security bond shall specifically guarantee that an MCS provider will timely abide by its construction, upgrade, rebuild or repair/maintenance schedule for the multichannel system and/or any timetable for technical and service improvements or additions to the multichannel system as may be committed to, or agreed upon, from time to time, by the City Council and MCS provider.

If the City Council draws on a performance or completion bond or cash deposit as a result of an MCS provider's failure to timely discharge its obligations, or failure to construct and activate the multichannel system, or failure to complete a multichannel system upgrade or rebuild or repair or maintain the system as required, then the MCS provider shall be required to replenish the completion and performance bond or security bond to the minimum level required by the City Council within 30 days.

The performance bond or security bond shall be in force at all times, unless relief is granted or a reduction schedule is detailed in a separate agreement, executed between the MCS provider and the City Council.

In lieu of a performance bond and/or a construction/completion bond, the City Council may accept a written guarantee of an MCS provider pledging the full faith and credit of the affected MCS provider should there be a breach in a material franchise, other agreement, license or permit term, or failure to meet any construction schedule.

§ 227-21 Maintaining other types of insurance and bonds.

Notwithstanding the insurance and bonding requirement contained elsewhere in this chapter, an MCS provider shall obtain and maintain any other types of insurance and bonds, including but not limited to workers' compensation insurance and automobile liability insurance, that are mandated by either federal or state law, including any applicable provision of the PSC.

Where applicable and required such MCS providers shall maintain such insurance and/or bonds in at least the minimal amounts, and according to the minimal terms and provisions mandated by either the federal or state law, including any applicable provision of the PSC.

§ 227-22 Maintaining a public inspection file.

To the extent required by federal and/or state law, including any applicable rule or regulation of the PSC, an MCS provider must maintain open records and reports that are subject to public inspection by:

Persons who are not customers or subscribers of the multichannel system.

Customers or subscribers of the multichannel system.

The City Council or other city officials, or the designee of such.

Though not exhaustive, an MCS provider shall maintain a public inspection file which includes, among other records:

Ownership records.

(Where applicable) a list of broadcast stations that are carried on the multichannel system as a result of federally imposed must carry requirements.

Commercial records for children's programming.

Equal Employment Opportunity (EEO) data.

Testing data and records, pursuant to the FCC's rules.

Any records or information required by the PSC.

Moreover, though not required by federal law, and if not prohibited by state law, including any applicable rule or regulation of the PSC, the City Council nevertheless requires as a matter of public policy that the MCS provider maintain the following additional records in its public inspection file:

A current rate card detailing both rates for cable services and charges for installation, remotes, converters and the like, plus any administrative or charges or fees.

A copy of the current complaint resolution policy.

A copy of the current disconnection policy, including both voluntary and involuntary disconnections.

A copy of the current policy regarding the issuance of credits or rebates for loss of service.

A copy of the current policy regarding the handling, and return, of subscriber deposits.

§ 227-23 Retention and submission of reports and records.

Notwithstanding any requirements contained elsewhere in this chapter, an MCS provider shall maintain and retain such records and reports as are necessary for the city to determine compliance with the obligations imposed on it by this chapter, and to determine the MCS provider's legal, technical, financial and character qualifications.

On or before January 1 of each year after the effective date of this chapter, an MCS provider shall submit to the City Council a list of files, reports, records, data or other information that the MCS provider periodically, customarily and/or regularly files with the FCC, or another federal or state agency. For any other report that an MCS provider files with any other federal or state agency, and that has a direct impact on the operation of the MCS provider's multichannel system, then the MCS provider shall notify the City Council of such filing within 15 days of said filing.

Said notice shall inform the City Council of the nature and scope of the filing, as well as the recipient of the filing (i.e., the name, address, department, division and phone number of the recipient).

As part of any performance or compliance evaluation, or for any legitimate matter related to the administration and enforcement of an MCS provider franchise, agreement, license or permit, the City Council may specifically request and require that it be provided with any or all listed reports, records, data or other information that were originally filed with the FCC, the Securities and Exchange Commission (SEC) or any other federal or state agency. However, unless specifically authorized by the state, an MCS provider shall not be required to provide the City Council with any state or federal tax returns, or any documents (inclusive of all above-referenced categories) that are exempted under state or federal privacy laws, including any applicable provision of the PSC, and Section 631 of the Cable Act (codified at 47 USC 551).

Notwithstanding anything to the contrary in the preceding Subsection D, the city reserves the right to require, as deemed necessary for the administration and enforcement of this chapter, or a franchise, other agreement, license or permit, that a franchisee or other MCS provider provide the city with copies of all applications, reports, documents, correspondence, pleadings and petitions of any kind whatsoever that relate to or have an effect on the system, the franchisee or the franchising authority that are submitted by or on behalf of the franchisee or other MCS provider, to the FCC or any other federal or state regulatory agencies or courts having jurisdiction with respect to any matters that affect the construction, operation or regulation of a cable television system or other multichannel service system, or that affect the services provided by such a system, where such addresses issues which affect the operation of the franchisee's or other MCS provider's system within the city. Said information shall be provided in a timely and expeditious manner, as may be required by this chapter or a franchise agreement or other agreement, license or permit, or lawful operating authority.

Copies of such responses, decisions or any other communications from the regulatory agencies or courts to a franchisee or other MCS provider or its agent, including franchisee's or other MCS provider's corporate parent, attorney or consultants, relative to its multichannel system in the city, or the operation of the system within the city, shall likewise be filed with the city immediately on the filing or receipt of such, but in no case later than 30 days after the filing or receipt.

In addition to the requirements noted in the preceding subsections of this section, an MCS provider shall timely submit those reports, statements and logs required by this chapter, including, but not limited to, the following:

A periodic gross revenue statement in the manner set forth in this chapter.

A periodic certification and evidence that the MCS provider is answering phones in accordance with the minimum requirements listed in this chapter.

Evidence of the satisfactory resolution of problems and complaints in the manner set forth in this chapter.

A copy of the outage log applicable to the system in the city, showing all service outages of any kind and duration, in accordance with the requirements in this chapter pertaining to such logs.

Preventive maintenance reports in the manner set forth in this chapter.

Where applicable, FCC Form 393 or 1200 (or equivalent) rate worksheets.

Where applicable, FCC Form 394 (or equivalent) concerning assignment or transfer of a franchised multichannel system classified as a franchised cable system.

FCC Form 395-A (or equivalent) concerning equal employment opportunity (EEO) and fair contracting policies.

§ 227-24 Inspection and review of books, records and other data.

An MCS provider shall keep complete and accurate books of accounts and records of the business and operations under, and in connection with, the operation of system.

The City Council, or its designee, shall have the right to require the provision of and delivery to the city offices, or the offices of its designee, true and complete copies of any records needed for the diligent administration and enforcement of this chapter and/or the franchise, other agreement, license or permit on three days' written notice and request, unless the retention of such records is specifically exempted by the City Council, or the time for review of such records is extended by the city.

The city shall have the right to hire, at its own expense, an independent certified public accountant, or other business or financial expert, to review the books and records of an MCS provider. If, after a financial audit, it is determined that the MCS provider has underpaid amounts owed to the city by any amount, then the city may require the MCS provider to reimburse the city for the actual cost of the audit. Absent fraud, any such audit by an independent certified public accountant shall be binding on all parties concerned.

A false entry into the books and/or records of an MCS provider, made by an MCS provider or any employee or contractor of the MCS provider, of a material fact or amount, shall constitute a material violation of this chapter and, at the discretion of City Council, subject the MCS provider to termination and revocation of its franchise, other agreement, license or permit, and any and all damages and penalties, both civil and criminal, as permitted under law. However, an erroneous entry, made in good faith, shall not constitute a material violation of this chapter, nor subject an MCS provider to any fines or penalties of any kind.

An MCS provider shall keep at the local office complete and accurate books and records of the key aspects of the multichannel system's operation for at least the preceding three years in such a manner that all matters pertaining to the city can be easily produced and/or verified at the request of the city. Also, the MCS provider shall keep at its local office, and shall make available and provide upon request by the city, any other applicable records and information that may be required by any other federal or state agency, including the PSC, that has jurisdiction over one or more classes of MCS providers as relate to the operation of the system, including financial matters. Notwithstanding the preceding, no MCS provider shall be required to provide information that is by law specifically deemed confidential or proprietary.

To the extent permitted by applicable state and federal law, the city shall not use any information provided by an MCS provider in a manner that would reasonably be deemed to provide a competitive advantage to another MCS provider, or that would reasonably be deemed place the provider at a competitive disadvantage.

§ 227-25 Applicability of state consumer sales practices laws. [1]

In addition to any and all requirements of this chapter, each and every MCS provider shall comply with, and abide by, all applicable provisions of any state law concerning consumer sales practices.

See § 227-6A for purpose of asterisk.

§ 227-26 Billing practices. [1]

At least annually, an MCS provider shall inform all subscribers of at least the following billing practices, which must be in accordance with this chapter:

Billing procedures (including payments necessary to avoid discontinuance of service).

Payment due and delinquent dates.

Amount or percentage of any administrative fees and/or late charges, if any.

Disconnection/reconnection policy.

Advance billing options.

Resolution procedures for billing disputes, complaints and inquiries.

Refund/credit policy for service interruptions or unsolicited service.

Current service rates in a detailed and understandable format.

Amount of charges for installation or relocation of an MCS provider's facilities and/or equipment.

Current schedule and explanation for any billed charges or other nonregularly occurring fees invoiced to subscribers (including service call charges or trip charges).

Whenever there is a change in an MCS provider's billing practices or payment requirements, all subscribers must be notified in writing at least 30 days prior to such billing practices or payment requirements becoming effective.

In any case where a subscriber requests a cancellation or reduction of service within 30 days after the notification of a scheduled rate or charge adjustment, then the subscriber's liability for service received after the effective date of such changes, until the cancellation or reduction of service, shall be determined in accordance with the rates or charges, if any, in effect prior to such change.

The annual ratification required in this section may be delivered to a subscriber by any means that reasonably assures that the subscriber actually receives the notification and wherein the notice is plainly discernible, of at least 10 point type and clearly indicates that it is a notice of importance that affects rates.

See § 227-6A for purpose of asterisk.

§ 227-27 Billing credit or refunds. [1]

An MCS provider, specifically including, but not necessarily limited to, any classified as a cable operator, shall, unless exempted by federal law, adhere to, and comply with the requirements of this chapter and all applicable state laws, rules and regulations, including those of the PSC, concerning billing credits or refunds due to service outages. For other MCS providers, a subscriber shall receive, on the next available monthly bill or periodic invoice for service, a pro-rata credit (or where applicable a refund) for any service outage exceeding 24 hours in duration.

Unless preempted by PSC rules, force majeure situations do not relieve an MCS provider from providing credits or refunds for service outages that exceed the standards set forth in this chapter.

In the case of a charge for unsolicited service to the extent permitted by PSC rules, an MCS provider shall provide a subscriber with an adjustment or billing credit on the next available monthly bill or periodic invoice for service. Moreover, in such a case, an MCS provider shall not consider a subscriber delinquent for failure to pay for any unsolicited service.

See § 227-6A for purpose of asterisk.

§ 227-28 Subscriber deposits.

A franchisee or other MCS provider may require refundable deposits in circumstances consistent with reasonable business practices and applicable state law, including where such deposits are necessary to protect equipment or to ensure payment where there is reasonable evidence of a risk of nonpayment.

Upon termination of service for any reason, subscribers will be entitled to receive a refund of any deposit within 30 days of the termination or cancellation of service, subject to:

An offset or credit for all outstanding obligations of the subscriber to the franchisee or other MCS provider, including outstanding service charges.

Return of all equipment provided by the franchisee or other MCS provider in connection with the services received by the subscriber in suitable condition, normal wear and tear excepted.

A franchisee or other MCS provider that collects deposits shall place all deposits in a separate account and shall account for the collective amounts of deposits separately. At no time shall there be a comingling or mixing of deposit money with any other money received.

If the account for deposits is an interest-bearing account, all interest earned shall be paid to the subscriber either annually or upon termination of service, whichever occurs earlier.

In no circumstances shall an MCS provider be permitted to use any deposits for working capital, or allow any deposits to be used for working capital, or for any purpose whatsoever other than for the intended purpose of serving as security against loss of amounts owed or loss or unreasonable damage to equipment belonging to the franchisee or other MCS provider.

All deposits for equipment shall be returned, with interest if applicable under this chapter, within 30 days of the cancellation or termination of service, provided the equipment is returned in good working order, normal wear and tear excepted.

All deposits intended to secure payment for service shall be returned within 30 days of the cancellation or termination of service, provided there is no outstanding amount owed to the MCS provider.

Failure to meet the requirements of this section may result in the imposition of fines in an amount set forth in the section titled "Fines."

§ 227-29 Policy with respect to billing disputes and/or contested charges. [1]

In those instances in which a subscriber contests the actual amount of a bill for service or other charges, or a periodic invoice for such, or the imposition of charge for a particular multichannel service or technical service request, such as installation or upgrade of service, or the amount of an administrative fee and/or late charge, such subscriber shall make the MCS provider aware (either in writing, or by verified verbal communication) of such contested amount prior to the multichannel service being disconnected.

No subscriber shall have service disconnected, and no MCS provider shall disconnect such service, during the period in which the contest of a rate or charge is unresolved. However, if the matter is resolved in favor of the MCS provider, the MCS provider may immediately disconnect the service if the subscriber has not paid the amount owed.

An MCS provider shall not consider a subscriber delinquent for failure to pay a charge for unsolicited service during the period the amount or charge is contested.

In light of the provisions contained in this section, an MCS provider shall make available an escrow account for subscribers with billing disputes and shall place all contested amounts in said escrow account.

In those instances where a subscriber has notified an MCS provider of a particular billing dispute, the subscriber may deposit, or request that MCS provider deposit or place the full amount contested into the escrow account set forth in the preceding subsection until the matter is either administratively or judicially resolved. In cases of multiple billing disputes, then the subscriber must deposit the full amount of each contested charge into an MCS provider escrow account, or request that the MCS provider do so.

Where, prior to disconnection, a subscriber deposits the full amount of the contested charge into an MCS provider escrow account, the MCS provider may not then disconnect the subscriber during the pendency of the billing dispute. Moreover, after the subscriber deposits the full amount of the contested charge into the escrow account, the subscriber shall not be liable for any further administrative fees and/or late charges that could be connected with the particular contested charge in question until the matter is resolved and then only if the matter is resolved in favor of the MCS provider.

Where the subscriber preserves his or her right to continued service by placing the full amount of the contested charge in an escrow account, the subscriber may thereafter subscribe to additional multichannel services, such as premium or pay-per-view events, so long as the subscriber adheres to any and all MCS provider-imposed rules, so long as such rules are applicable to subscribers in general.

Upon formal resolution of the billing dispute, the money in the escrow account, together with interest, if applicable, shall promptly be distributed to the individual parties in the amount noted by any settlement agreement, or administrative or judicial order or finding.

These above-described provisions shall be in addition and supplemental to any provisions contained in the MCS provider's complaint/inquiry resolution policy.

See § 227-6A for purpose of asterisk.

§ 227-30 Customer service; capabilities of office; staffing and equipment. [1]

In order to facilitate the needs of the local customers or subscribers, an MCS provider subject to the provisions of this section shall maintain a customer or subscriber service office which is:

Located within the corporate boundaries of the city, or no further than two miles outside the city limits.

Accessible to the physically and ambulatory-impaired.

Adequately staffed during business hours to handle both the walk-in and telephonic traffic of customers or subscribers.

The local service office shall be open at least 40 hours per week, exclusive of holidays.

Within the 40 hours per week that the local service office must be open, an MCS provider subject to the provisions of this section shall be required to provide staffed office hours either two evenings a week until 7:00 p.m., or four hours on Saturday, if not prohibited by rule or regulation of the PSC. No MCS provider shall be required to keep the office open and staffed both on evenings and on Saturday.

The local service office shall have an adequate staff that is trained and knowledgeable in order to handle the vast majority of customer or subscriber inquiries, specifically including, but not limited to: billing inquiries, refunds, credit, service outages, equipment service and repair, payment of bills and other charges, and inquiries from disabled or physically-impaired customer or subscribers.

An MCS provider subject to the provisions of this section may install, at the local service office, an after hours depository in order to collect invoice payments, and receive written requests for service appointments, including installations, connections, disconnections and complaints after scheduled office hours.

An MCS provider subject to the provisions of this section may install an automated (audio or video) customer or subscriber assistance device which can handle various types of customer or subscriber inquiries, so long as the caller has the option and ability to speak with a live representative of the MCS provider at all times during which the office is, or is required to be open and staffed.

Where not prohibited by the PSC, an MCS provider subject to the provisions of this section may install an interactive customer or subscriber assistance device or contract service which is capable of handling various types of customer or subscriber inquiries.

If permitted by the PSC, an MCS provider subject to the provisions of this section may contract with another business or commercial establishment for the sole or primary purpose of collecting subscriber payments and distributing MCS provider permissible, and where applicable authorized, promotional, billing and/or subscriber information and literature.

An MCS provider subject to the provisions of this section shall maintain at least one tollfree and/or local telephone number to accommodate both normal business inquiries, including requests for installation of service and changes in levels or categories or types of service, to facilitate calls concerning the repair of equipment, service outages and the extended interruption of service. During any hours that the customer or subscriber service office is open, the MCS provider must have, or make available, in-house personnel to address a customer or subscriber's inquiries. During other hours, a telephone may be manned by an automatic answering device, provided that the use of an answering device or answering service results in an initial phone response by the MCS provider within 90 minutes of the receipt of the call, in order to at least determine the extent of the outage, interruption or other customer or subscriber-related concern.

An MCS provider subject to the provisions of this section shall have adequate staff and/or extension lines (except during special marketing promotion periods, peak billing cycles, and service outages) in order to handle all calls and inquiries directed to the general information number, in accordance with this chapter.

An MCS provider subject to the provisions of this section shall at all times have sufficient technical and repair staff to operate and maintain the system in compliance with the provisions of this chapter, including the provisions regarding the repair and restoration of service, as well as all applicable state and federal rules and regulations.

An MCS provider subject to the provisions of this section shall at all times have sufficient repair equipment and replacement parts to repair and restore service in accordance with the provisions of this chapter.

See § 227-6A for purpose of asterisk.

§ 227-31 Preferential or discriminatory practices prohibited. [1]

An MCS provider shall not, as to rules, regulations, rates, charges, provision of service or use of an MCS provider's facilities and equipment, make, allow or grant any undue preference or advantage to any person, nor subject any person to prejudice or disadvantage, on the basis of age, race, creed, color, sex, national origin, handicap, religious affiliation or location of residence.

Consistent with Section 621(a)(3) of the Cable Act [codified at 47 USC 541(a)(3)], MCS providers classified as cable operators shall not deny cable service, or the extension of cable service, to any group of potential residential cable subscribers based on the income of the residents of the local area in which such group resides.

Subsection A of this section does not prohibit an MCS provider from denying service based on the location of residence, if that residence is outside the parameters for line extension as may be detailed in a franchise, other agreement, license or permit (if applicable).

Subsection A of this section also does not prohibit an MCS provider from denying service to a subscriber who is delinquent in the payment of any periodic service, or special service bill, so long as the requirements for billing disputes and disconnection have been satisfied in accordance with this chapter.

Subsection A of this section also does not prohibit an MCS provider from making agreements or entering into multichannel service agreements with multiple dwelling unit owners (including hotel, motel and mobile park owners) to provide multichannel service under a bulk billing or other type of arrangement, subject to applicable federal and state law and rule.

See § 227-6A for purpose of asterisk.

§ 227-32 Restoration of a subscriber's property. [1]

If at any time an MCS provider, in furtherance of its right to construct, operate and maintain a multichannel system, shall disturb the yard, residence or other real or personal property of a subscriber, such MCS provider shall ensure that the subscriber's yard, residence or other personal property is returned, replaced and/or restored to a condition comparable to that which existed prior to the commencement of the work.

The costs associated with both the disturbance and the return, replacement and/or restoration shall be borne by the MCS provider. This subsection also requires the MCS provider to reimburse a subscriber or private property owner for any actual physical damage caused by an MCS provider, its subcontractor or its independent contractor, in connection with the disturbance of a subscriber or private property owner's property.

See § 227-6A for purpose of asterisk.

§ 227-33 Service inquiries, requests, complaints and response times. [1]

Except in cases of force majeure, or an appointment scheduled with the mutual consent of a subscriber, an MCS provider classified as a cable operator, and any MCS provider not exempted from compliance with this section by federal law or rule, shall respond to the service inquiries, requests and complaints of subscribers within such MCS provider's normal business or service hours, and within the time schedules detailed in Subsections D through G of this section. The MCS provider shall be considered in compliance with this section if the standards of service outlined in Subsections D through G are met or exceeded at least 98% of the time as measured over any three consecutive calendar months. Conversely, the MCS provider shall be considered in noncompliance, except for force majeure situations or mutually agreed upon scheduled appointments, if the standards of service outlined in Subsections D through G of this section are not met or exceeded at least 98% of the time over any three consecutive calendar months.

For extenuating circumstances in which an MCS provider cannot meet the response and service restoration requirements noted in Subsections D through G of this section, such MCS provider shall comply with and submit all documentation of progress towards restoration, as required by the provisions of this chapter, and any applicable rules of the PSC.

Moreover, except in emergency situations, an MCS provider shall inform the subscriber that there is a choice as to whether the service call is scheduled for the morning (8:00 a.m. to 12:00 noon), afternoon (12:00 noon to 4:00 p.m.), or evening (4:00 p.m. to 8:00 p.m. or later) hours. If the service call has to be canceled or rescheduled by the MCS provider, then the MCS provider shall make every effort to notify the customer or subscriber as soon as possible prior to the date and time of the appointment, and shall reschedule the service call for a time convenient to the customer or subscriber, within the MCS provider's normal working hours, and if desired by the subscriber, within 24 hours of the canceled appointment, so long as the appointment is for a normal workday.

In the case of a report or complaint of a loss of service, such being defined as a "blank" or "no picture" situation on either the lowest level of service or all levels of service, the MCS provider shall treat such report as a top priority and respond before starting any other job or function, except for a critical job that would jeopardize the functioning of the remaining portion of the system. In no case shall the response be later than six hours after the time the report or complaint is received, so long as it is received during a normal workday and four hours prior to the end of the workday. The MCS provider shall make its best effort to restore service as quickly as is possible, but in no event later than the soonest possible time, including when such a report or complaint is received after normal working hours. In the event of an after hours report or complaint of a loss of service from two or more subscribers from within the same portion of the system within the city, the MCS provider shall respond to and make its best effort to restore service within two hours of the time the report or complaint was received, or in extenuating circumstances, as quickly as is possible. At no time shall an MCS provider's staff that responds to a report or complaint of a loss of service leave the problem until service is restored, where it is found that a loss of service has occurred.

In the case of a loss of service or a blank or no-picture situation of any given level of subscription or billing or service (except for pay-per-view events), an MCS provider shall respond to, and make repairs as are necessary to return and restore the multichannel service within 24 hours from the time the MCS provider first received notification of the service interruption blank or no-picture situation.

In the case of a signal or service interruption or a diminution of service as defined in § 227-4 of this chapter, an MCS provider shall make its best efforts to respond and remedy the problem the same day, but in no case later than one working day from the time the MCS provider first received notification of the signal or service interruption or diminution of service.

In the case of a defective, improperly or nonoperating piece of equipment, an MCS provider shall make its best efforts to respond and remedy the problem the same day, but in no case shall the response be later than one working day from the time the MCS provider first received notification. Moreover, the MCS provider shall complete repairs as are necessary to correct the problem within 36 hours from the time the MCS provider first received notification of the defective, improperly or nonoperating piece of equipment.

In the case of a dispute concerning the precise time that the MCS provider received notification, or the precise circumstances surrounding the MCS provider receiving notification, or whether notification was received at all, the City Council reserves the right and authority to dispositively settle such a dispute.

See § 227-6A for purpose of asterisk.

§ 227-34 Payment delinquency; late charges; termination of service. [1]

To the extent permitted by state law, including any applicable rule of the PSC, a subscriber shall not be considered delinquent in payment until at least the following have occurred:

Thirty-five days have elapsed from the postmarked date of the bill to the subscriber.

Service for the first thirty-day period billed for has been delivered.

Payment for said thirty-day period has not been received by an MCS provider.

Before disconnection of a subscriber's multichannel service takes place, either physically or electronically, the following must occur:

The subscriber must in fact be delinquent in payment for multichannel service as defined by this chapter; and

At least 24 hours have elapsed after a separate written notice of impending disconnection has been delivered upon the subscriber or deposited at his or her residence; or

At least 72 hours have elapsed after the mailing a separate written notice of impending disconnection to the subscriber as determined by the postmark; or

At least 24 hours have elapsed after the subscriber has either signed for or refused to accept a separate written notice of impending disconnection.

The written notice of disconnection must expressly and clearly state:

The amount that is owed by the subscriber to an MCS provider.

The minimum amount required to be paid to avoid disconnection.

The date and place where such payment must be made.

Disconnection of service must occur both on a normal service day and within normal business hours of an MCS provider, unless the subscriber is given the opportunity to pay the full amount of the past due account in accordance with the provisions of this chapter.

An MCS provider who physically retrieves its equipment from a subscriber, including but not limited to converters, remote control units and digital audio tuners, must do so within both a normal service day and normal service hours of an MCS provider, unless otherwise agreed to by the subscriber.

Where an MCS provider imposes an administrative fee for a payment delinquency it shall nevertheless be treated as a late charge, and may not be any more than the state or PSC allows for late charges, if the state or PSC has a provision covering the maximum permitted late charges. If the state or PSC is silent on such a late charge, then the maximum permitted late charge and/or administrative fee shall be a simple 12% of the payment delinquency.

To the extent permitted by state law, including any applicable PSC rule or regulation, a subscriber shall not be considered delinquent in such case where he or she has notified the MCS provider of a billing dispute and/or contested charge prior to disconnection, and the subscriber has allowed the full amount of the contested charge to be placed in an MCS provider's escrow account by the MCS provider, or made the appropriate deposit into the MCS provider's escrow account. Moreover, if a late charge and/or administrative charge is assessed prior to notification of the contested charge, or is in fact the contested charge, then such late charge and/or administrative fee may not be greater than the state permitted maximum, or a simple 12% if there is no state-imposed or PSC-imposed maximum.

Receipt of a bad check or other negotiable instrument from a subscriber, in response to a written notice of disconnection, does not constitute payment, and the affected MCS provider need not give the subscriber further notice prior to disconnecting multichannel service.

An MCS provider may add a reasonable connection charge to the subscriber's bill if the applicable provisions of this chapter, and any applicable PSC regulation, are followed.

Any refund due a subscriber after a disconnection pursuant to this section shall be made within 60 days of the disconnection for nonpayment.

See § 227-6A for purpose of asterisk.

§ 227-35 Voluntary disconnections, including requests for downgrades. [1]

At any time, a subscriber may request that a particular service, level of service, service tier, menu-driven program or service, premium channel, informational service, or the entire multichannel service be disconnected with no penalty of any kind whatsoever.

Unless prohibited by the Cable Act or state law, including any applicable rule or regulations of the PSC, a subscriber may request a downgrade from a particular level of service to a lower or less comprehensive or expensive level of service. To the extent that a subscriber requests a downgrade from an MCS provider classified as a cable operator, then such MCS provider shall follow the rules and regulations of the PSC, so long as such are not inconsistent with applicable federal law. In the event there are no PSC rules governing such, there shall be no charge for downgrading disconnecting service, unless the city's authority to enforce this subsection is preempted or prohibited by federal law or rule.

A subscriber's obligation to pay for any service for which he or she has requested disconnection or a downgrade shall cease within 72 hours from the date of the request.

For a service, level of service, service tier, a la carte or menu-driven service, premium channel, informational service or other communications service which is voluntarily disconnected, a subscriber shall pay only a pro-rata share of the monthly rate for such service, level of service, service tier, a la carte or menu-driven service, premium channel, informational service or other communications service, for the month in which the request was made, based upon the number of days of that month prior to the request. In other words, the subscriber shall not be required to pay for, nor shall he or she be billed for service, that was delivered more than 72 hours after the date of the request.

If, however, an MCS provider's equipment is, or has been damaged by a subscriber prior to such disconnection, then the MCS provider may charge the subscriber the entire actual cost of such damage, but no more than the actual replacement cost to the MCS provider, provided that the MCS provider notifies the subscriber of the damage at the time of the disconnection or downgrade. A subscriber shall not be required to pay for equipment failure if the circumstances fall within the normal wear and tear or acts of nature guidelines established in this chapter, or if the procedures in this subsection are not followed.

Once a one-time airing of a program or event starts, such as a pay-per-view event, which was affirmatively ordered by the subscriber, but only if it was affirmatively ordered, should the customer or subscriber then request a cancellation, the MCS provider may collect the full advertised or quoted rate.

Any refund due a subscriber after a voluntary disconnection and/or downgrade shall be made within 60 days after such disconnection or downgrade.

In no event will this section be viewed as abridging the rights and remedies afforded the subscriber by the complaint/inquiry resolution process outlined in this chapter.

See § 227-6A for purpose of asterisk.

§ 227-36 Nonprohibitive access policy. [1]

Except for normal sales and sales retention efforts, no MCS provider shall engage in any activity or practice which is designed to prohibit or inhibit, or has the effect of inhibiting or prohibiting, a subscriber from:

Switching from one MCS provider to another MCS provider;

Disconnecting from one MCS provider in order to connect and receive multichannel service from another MCS provider; or

Simultaneously receiving multichannel service from more than one MCS provider.

No MCS provider shall engage in any activity or practice which has the effect of acting as a penalty or disincentive for a subscriber:

Switching from one MCS provider to another MCS provider;

Disconnecting from one MCS provider in order to connect and receive multichannel service from another MCS provider; or

Simultaneously receiving multichannel service from more than one MCS provider.

With respect to Subsection B of this section, the following practices are prohibited, unless the MCS provider can justify the need, cost and/or rationale to the city to the city's satisfaction:

Consistent with the Cable Act and any PSC rules, disconnection and/or downgrade charges that are in excess of the actual, verifiable costs incurred by the affected MCS provider in connection with the disconnection and/or downgrade;

The imposition of a disconnection and/or downgrade charge or premium that is unrelated to the actual, verifiable costs incurred by the affected MCS provider in connection with the disconnection and/or downgrade;

The imposition on the subscriber by the affected MCS provider of a discriminatory or punitive return charge for the return of equipment beyond the actual replacement cost to that MCS provider; or

The requirement that a subscriber enter into a service contract which imposes penalties or cost-prohibitive charges, if the contract is canceled in order to receive service from another MCS provider.

See § 227-6A for purpose of asterisk.

§ 227-37 Specific state-imposed rules for MCS providers classified as cable operators.

Multichannel service providers shall be expected to comply with, and abide by, any and all applicable state-imposed rules and regulations, as well as any applicable rules and regulations of the PSC.

Though not exhaustive, MCS providers subject to this section shall comply with, and abide by, the following:

Provision of the drop and basic or the lowest level of service at no cost to all city-owned and/or occupied buildings or offices as requested by the city, any school or educational institution within the MCS provider's service area in the city, provided that service is available within a reasonable distance from the school or institution requesting service, such being defined as not requiring the placement any active electronic or amplification equipment to provide adequate signal strength to the point-of-entry to the school or educational institution;

Submission of a schedule of all terms and conditions of service in the form and format prescribed by the city;

Annual submission of the required annual notice that informs subscribers of:

Procedures needed to file or make a complaint and request rebates, credits or refunds;

Federally required subscriber privacy notification; and

The address and phone number of the appropriate division or department of the PSC; and

Keeping a log or record, for two years, of all complaints received regarding, but not limited to, the quality of service, rates, programming, equipment malfunctions, billing procedures and other matters of subscriber dissatisfaction, including treatment by subscribers.

§ 227-38 Protection of subscriber privacy. [1]

An MCS provider shall abide by any and all subscriber privacy rules or regulations of the federal or state government, including any applicable rule or regulation of the PSC.

See § 227-6A for purpose of asterisk.

§ 227-39 Resolution of complaints/inquiries. [1]

The city is hereby granted the authority to do all things necessary and permissible to supervise, inspect and regulate the construction, operation and maintenance of multichannel systems, franchised or otherwise, that are subject to this chapter in whole or in part, and to implement procedures for the filing and resolution of complaints, unless otherwise prohibited by federal or state law.

The responsibility for such supervision, inspection and regulation is retained by the City Council, which is empowered, among other things, to adjust, settle or compromise any controversy arising from the operations of any franchisee or other MCS provider, either on behalf of the city or any subscriber, in accordance with the best interests of the public and the city; provided, however, that any person aggrieved by a decision of the city may appeal the matter for hearing and a determination, in accordance with this chapter.

The City Council reserves the right, at all times, on behalf of the city or a subscriber, to accept, reject or change any decision of the City Council, and may adjust, settle or impose a compromise regarding any controversy arising from the operation of a franchisee or other MCS provider, or from any provision of this chapter.

If an advisory committee is established by the city, a franchisee or other MCS provider is encouraged to participate in advisory committee meetings relating to MCS provider operations.

An MCS provider is required to develop a comprehensive complaint/inquiry resolution policy which adheres to requirements of this chapter, and any rules or regulations promulgated hereunder, as well as any applicable rules of the PSC.

Said policy shall be submitted to the city for the city's approval of the content at the time of the initial development or composition of the policy, and thereafter 30 days prior to any planned or proposed change in policy and required notification of such change to subscribers.

An MCS provider's complaint/inquiry resolution policy shall be reduced to writing, and such policy shall be available upon request, to any person. In any event, a subscriber shall receive notice of such policy, and any change in said policy, in the manner that is prescribed by this chapter and any PSC rules.

See § 227-6A for purpose of asterisk.

§ 227-40 Policy with respect to continuity of multichannel service provisions.

To the extent permitted by state law, including any applicable rule or regulation of the PSC, all MCS providers may not abandon, withdraw or cease to provide multichannel service to any subscribers or service area within the city, other than as permitted under this chapter, without the prior written consent of the City Council.

Moreover, an MCS provider may not use the threat to abandon, withdraw or cease to provide multichannel service to any subscribers or service area within the city to avoid compliance with this chapter or the terms and conditions of a franchise, other agreement, license or permit.

Failure to meet the requirements of this section may result in the imposition of fines in an amount set forth in the section titled "Fines."

Further, and in addition to and not limited by the preceding subsection, violation of this section shall subject the MCS provider to termination and revocation of its franchise, in accordance with the provisions of this chapter.

§ 227-41 Continued use of individual antennas protected.

The City Council does not intend to prohibit the erection or continual use of individual television antennas within the city, so long as the individual television antennas conform to any and all applicable zoning and/or land use regulations. Consequently, no person shall be required to receive multichannel service, or to physically connect to a multichannel system.

No person shall be penalized or fined (either through a home sales contract, a deed containing restrictive covenants, or any other type or instrument of agreement or restriction) for failing or refusing to subscribe to or receive multichannel service, or for failing or refusing to physically connect to a multichannel system.

§ 227-42 Construction schedule and construction-related requirements.

In order to establish minimum uniform standards, any MCS provider shall adhere to the following minimum construction schedule and construction-related requirements:

Construct, install, maintain and repair the multichannel system in accordance with this chapter, and any additional requirements of the state, county and/or city.

Use streets and public rights-of-way as set forth in this chapter, and any other applicable requirements of the state, county, and/or city.

Where applicable, and when ordered in accordance with this chapter, remove the MCS provider's equipment, facilities and property from public streets or right-of-way, in accordance with this chapter and applicable state law.

Adopt the construction standards as set forth in this chapter.

Abide by and act in strict accordance with all current technical codes that are standard and customary to the cable television and multichannel service industry, including construction, fire, safety, health and zoning codes that are adopted by the city, or the county, or the state, or the United States, and as set forth in this chapter as relate to the system and its operation.

Maintain all permits and licenses as required by this chapter.

§ 227-43 Construction to be of good quality.

During any phase of construction, and with respect to any installation, maintenance and repair of the multichannel system, the MCS provider shall use materials of good and durable quality and all such work shall be performed in a safe, thorough and reliable manner, and at all times in compliance with the provisions of this chapter and other applicable ordinances, codes, rules and regulations of the city, the county and the state, including those of the PSC.

§ 227-44 Conditions on use of streets and public ways.

To the extent permitted by law, including any applicable rule or regulation of the PSC, all wires, conduits, cable (whether coaxial, fiber or a functional equivalent) and other property and facilities of an MCS provider shall be so located, constructed, installed and maintained so as not to endanger, or unnecessarily interfere with, the usual and customary use, traffic and travel upon the streets, rights-of-way, easements and public ways of the city or any private property adjacent to such.

In the event an MCS provider's system creates a hazardous or unsafe condition, such being defined as situations not in compliance with any safety or safety-related code, or an unreasonable interference with public or private property, the MCS provider shall voluntarily, or upon the request of the City Council, in a prompt and timely manner remove or modify that part of the system so as to eliminate such condition from the subject property in a prompt and expeditious manner and time frame.

An MCS provider shall at no time and under no circumstances place equipment where it will unduly or impermissibly interfere with the rights of property owners, or with gas, electric or telephone fixtures, water hydrants or mains, wastewater lift stations, any traffic control system, or any other service or facility that benefits or protects the health, safety or welfare of the city or its residents.

An MCS provider, either at its own expense or that of a private contractor, shall protect public property, rights-of-way and easements, and shall support or temporarily disconnect or relocate any property of such MCS provider when necessitated by reason of:

Traffic conditions;

Public safety;

Temporary or permanent street closing;

Street construction or resurfacing;

A change in, or establishment of, street grade;

Installation, repair or modification of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines, and any traffic control system; or

Any improvement, construction, repair or public works project related to the city's or its residents' health safety or welfare.

It shall be the responsibility of an MCS provider, acting alone or in conjunction with another person, to locate and mark or otherwise visibly indicate and alert others to the location of its underground wires or cable (coaxial, fiber or a functional equivalent) before employees, agents or independent contractors of any entity perform work in the intended area.

An MCS provider shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the wires and facilities of the multichannel system to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and the MCS provider may require payment in advance. The affected MCS provider shall be given not less than 14 days' notice of a contemplated move to arrange for temporary wire changes.

§ 227-45 Franchised MCS provider's duty to remove franchised properties from public streets.

This section is applicable to any MCS provider whose system occupies public property or rights-of-way.

Unless the city, or another MCS provider, indicates its lawful intent to use the multichannel system (such as in the event of the sale and purchase of the system) under the continuity provisions outlined in this chapter, the affected MCS provider shall promptly remove its multichannel system, including any facilities, equipment and property, or any abandoned portion of the system, from the street, public ways and private property located within the city, at its sole expense, within 90 days of the date of expiration, or the date of revocation and termination, of its operating authority, or a lawful order or directive from the city, whenever any of the following occurs:

The MCS provider ceases to operate all, or part, of the multichannel system for a continuous period of 90 days;

The MCS provider fails to construct the multichannel system as outlined in an initial application, a proposal for renewal, a renewal of the franchise, other agreement, license or permit, or an amended franchise, other agreement, license or permit;

The City Council elects not to, and affirmatively acts not to, renew the franchise, other agreement, license or permit pursuant to the provisions set forth in this chapter; or

The MCS provider's franchise, other agreement, license or permit is revoked pursuant to the provisions set forth in this chapter.

The MCS provider shall remove its property, facilities, equipment, cable and wires located in the city's streets and rights-of-way in the manner and time frame prescribed in Subsections C through F of this section.

If not removed voluntarily by the MCS provider, then the city may notify the MCS provider that if removal of the property is not accomplished within 90 days, or substantial progress towards removal is not made within 75 days, then the city may direct its officials or representatives to remove the MCS provider's property, facilities, equipment, cable and wires at the MCS provider's expense.

If officials or representatives of the city remove, or cause to have removed, an MCS provider's property, facilities, equipment, cable and wires, and such MCS provider does not claim the property within 90 days of its removal, then the city may take whatever steps are permissible under state law to declare the property surplus, and sell it, with the proceeds of such sale going to the city, if permitted by state law.

When such MCS provider removes its multichannel system and property, facilities, equipment, cable and wires from the streets and public rights-of-way within the city, the MCS provider shall, at its own expense, and in a manner approved by the city, replace and restore such public or private property to a condition comparable to that which existed before the work causing the disturbance was done.

§ 227-46 Construction standards.

Methods of construction, installation, maintenance and repair of any multichannel system shall comply with the most current editions of the National Electrical Safety Code (NESC) and the National Electrical Code (NEC) as regards the construction, installation and maintenance of electrical supply and communication lines and attachments and supports, including but not limited to cable television systems. To the extent that these are inconsistent with other provisions of a franchise, other agreement, license or permit, or state or local law, state law shall apply unless the state permits the local law or ordinance to control, in which case the local law and this chapter shall control.

Any MCS provider, when engaged in any construction, installation, maintenance and repair activities, shall treat the aesthetics of property as a priority, shall not substantially change or affect the appearance or the integrity of the structure and the property on which it is situated in a negative manner, which specifically includes prohibiting the installation of a drop and associated components on the bias across the side of a residence or other structure without the property owner's permission. This specifically means that, unless impracticable, all drop material attached to a dwelling or business must follow the perimeter lines or roof lines of the dwelling or business to the extent possible, and result in the minimum visual effect reasonably possible, taking into account the reasonable desires of the subscriber.

To the extent not physically or commercially impracticable, all underground drops shall follow property lines, and shall cross property only at right angles, unless otherwise permitted by the property owner, or unless required due to the physical characteristics of the subsurface or surface obstructions.

Underground installations shall be constructed in accordance with the specifications and requirements of the city and the National Electrical Safety Code and the National Electrical Code, including but not limited to depth of burial. In the event that the National Electrical Code does not at any time address depth of burial for individual service drops, the required minimum depth shall be such that a ten-inch long spade traditionally used in normal landscaping and yard maintenance would not damage the drop.

For existing multichannel systems, the provisions of Subsection C of this section shall apply only at the time a scheduled upgrade or rebuild of the MCS provider's multichannel system is actually commenced and in progress. For newly served areas, the provisions of Subsection C of this section shall apply at the time of initial construction and/or installation.

For an MCS provider operating a multichannel system in the city at the date of adoption of this chapter, the MCS provider shall be required to bring all service drops into compliance with the requirements of this section within 24 months from the date of adoption of this chapter.

In instances where either electrical or telephone utilities install wire or cable aerially, the MCS provider may construct its multichannel system aerially, unless otherwise required by state law; provided, however, that all minimum separations between facilities as required by applicable code, rule or regulation must at all times be complied with, and there shall at no time be a conflict with or any contact between the MCS provider's wires and cable or other equipment and facilities and those of a utility.

§ 227-47 System expansion.

For MCS providers subject to this section, the franchise, other agreement, license or permit between the city and/or City Council and the franchised MCS provider shall contain either a system expansion schedule for any area not provided multichannel service as of the date of the franchise, other agreement, license or permit, or an explanation acceptable to the city as to why a particular area will not be served.

§ 227-48 Permits and licenses.

An MCS provider shall obtain, at its own expense, all permits and licenses required by local law or ordinance, or state rule or regulation, and shall maintain the same, in full force and effect, for as long as required by the city or other appropriate governmental entity or agency.

§ 227-49 Technical performance standards.

It shall be the responsibility of any MCS provider to comply with the most current FCC technical standards.

§ 227-50 Reservation of right to inspect system and review documents.

In order to verify that an MCS provider constructs and maintains the multichannel system in the manner required by this chapter, and applicable state and federal rules and regulations, including all state and federally required testing and inspection of the system, as well as the required preventive maintenance program and safety-related inspections required by this chapter, including any tests and inspections required by the PSC, the city reserves the right to inspect all facets of an MCS provider's construction, placement, operation and maintenance of the system.

The city also reserves the right to require the delivery to the city, or its designee, of any or all records and documents related to such tests and inspections for purposes of review, as may be deemed necessary to administer and enforce compliance with this chapter and any franchise, other agreement, license or permit.

The city shall pay for all of its costs associated with such inspections or reviews, except for those circumstances occasioned by an MCS provider's refusal to provide the requested information necessary for the administration and enforcement of this chapter and any franchise, other agreement, license or permit, or that is occasioned by the failure to construct, install, maintain, repair, rebuild or upgrade in the manner specified and required by this chapter, or where applicable, a franchise, other agreement, license or permit. In such instances, the MCS provider shall pay for such costs incurred by the city that are caused by the MCS provider's refusal or failure to supply necessary information, or the failure to abide by the rules subsequent to city notices or directives.

§ 227-51 Policy with respect to safety requirements.

The city requires that any MCS provider's construction, operation and maintenance of the multichannel system meet certain threshold safety levels which are designed to protect the public and lessen the likelihood of interruption of multichannel service.

Consequently, at a minimum, an MCS provider shall, at all times and without exception, except for situations involving matters of force majeure, comply with the following safety and safety-related requirements:

Emergency alert override activation in the manner set forth in this chapter.

Minimum standby power as noted in this chapter.

The diligent conduct of a preventative maintenance program, as set forth in this chapter.

Comply with, and abide by, all FCC rules concerning signal quality and signal strength, including the FCC's cumulative leakage index (CLI) rules.

Comply with, and abide by, any and all construction, safety, electrical, health and fire codes, as specified in this chapter or other applicable city codes or ordinances.

§ 227-52 Provisions to alert subscribers in the event of a disaster emergency; standby power.

In order that subscribers may be alerted in the event of an impending, imminent or actual natural or other disaster or emergency, all MCS providers shall ensure that the multichannel system providing multichannel service to all, or any part, of the city is designed, constructed and installed with the equipment that will permit an authorized official or designee of the city to override the audio portion of all channels, by touch-tone phone (or functional equivalent) from any location.

In addition to any other requirements listed in this section, an MCS provider shall:

Designate a channel which will be used for disaster/emergency broadcasts of both audio and video, though this channel need not be solely used for emergency broadcasts, and may in fact be used for any lawful purpose.

Inform subscribers of the designated emergency channel on a periodic basis, not less than once a day.

Maintain all-channel video blanking capability to facilitate the needs of hearing and sight-impaired customer or subscribers.

Test the disaster emergency override system not less than once a month, and remedy any problems or operational deficiencies immediately.

Cooperate with the city on the use and operation of the emergency alert override system.

Develop a plan, with the city's concurrence, to provide continuity of multichannel service, and response to service calls, in the event of an emergency.

As one method of providing continuity of multichannel services in the event of a failure of commercial electrical power, for any reason whatsoever, including but not limited to a natural or other disaster or emergency, an MCS provider shall, unless exempted by the city, install and diligently maintain automatically activated standby or backup power to power all active line electronics (e.g., amplifiers) for at least two hours and all trunk and feeder cable, and additionally install and diligently maintain an automatically activated standby generator at all headends, hubs and receive sites associated with the distribution of cable service to, and throughout, the city that are owned or under the control of the MCS provider or any affiliate or parent organization.

§ 227-53 Implementation of a preventative maintenance program.

It shall be the duty of an MCS provider to devise and implement a preventative maintenance program for the multichannel system in order to ensure that there is no material degradation of the operation or performance of the multichannel system that would affect the citizens' health, safety and welfare, or negatively affect the quality or reliability of multichannel services provided throughout the city.

Before the MCS provider implements such a preventive maintenance program, it shall provide a copy of such program to the city for its review and approval. The city shall specifically have the right and authority to establish the minimum acceptable standards for the preventive maintenance program.

Although not exhaustive, the following areas and standards shall at a minimum be included in a preventive maintenance program, and the results included in any subsequent report:

Daily inspection, and adjustment if necessary, of the signal quality of each channel, including both the audio and video levels at the master headend.

Daily scan, and adjustment if necessary, of carrier levels with a spectrum analyzer or functional equivalent at the master headend.

Daily logging of any and all adjustments made to the headend electronic or signal processing equipment, any antennas or other reception equipment or the distribution system.

Daily monitoring and logging, and repair, if necessary, of signal leakage, to ensure that the multichannel system is within FCC allowed levels.

Inspection of drops as an integral part of every service call, and schedule for relocation or replacement, if necessary.

Inspection and recordation of appropriate signal levels during each service call.

Weekly monitoring, and adjustment if necessary, of headend audio and video carrier levels at the master headend.

Weekly monitoring, and adjustment if necessary, of headend descrambling levels to meet operational standards of the equipment manufacturer.

A minimum of twice annually realign the satellite equipment as the target satellite passes through the center of the box.[1]

Editor's Note: Former Subsection C(10), which immediately followed this subsection, was deleted 5-6-1998 by Ord. No. 98-8.

A minimum of twice annually conduct performance measurements, done no more frequently than seven and no less frequently than five months apart, and adjustment if necessary, at all extremities of the distribution system, and to include:

Video and audio signal levels.

Overall difference in signal level or response flatness.

Hum modulation.

Carrier-to-noise.

(e)

Signal egress.[2]

[2]

Editor's Note: Former Subsection C(12), which immediately followed this subsection, was deleted 5-6-1998 by Ord. No. 98-8.

(11)

Monthly testing, and repair if necessary, of the emergency alert override system.

(12)

Monthly testing and inspection, and repair if necessary, of 1/3 of all standby power supplies.

(13)

Semiannual monitoring, and adjustment if necessary, of headend radio frequency (RF) input levels to off-air processors coincident with the twice annual FCC required proof-of-performance tests.

(14)

Semiannual inspections, and repair if necessary, of:

Any antenna tower.

Any and all earth stations.

Any and all buildings and fences associated with the multichannel system.

(15)

Semiannual inspections, and repair and/or recalibration if necessary, of all in-house, and field test or measuring equipment no less often than the manufacturer's recommended calibration schedule, with such calibration evidenced by a certificate issued by a NIST-traceable calibration lab, which may include the operator is so qualified and traceable to the NIST.

(16)

As required by the FCC semiannual extremity tests (and adjustment if necessary) of the distribution system to include:

Cross modulation distortion.

Composite second and third order products.

RF sweep response.

(17)

As required by the FCC, testing to determine compliance with the FCC's cumulative leakage index (CLI) rules.

(18)

Extremity tests as required by the FCC (and adjustment if necessary) of the distribution system, to include:

Twenty-four-hour signal level stability test.

Channel response flatness.

(19)

Where required by local or state law, annual inspection and repair (if necessary) of all MCS provider owned or leased vehicles.[3]

[3]

Editor's Note: Former Subsection C(22), which immediately followed this subsection, was deleted 5-6-1998 by Ord. No. 98-8.

(20)

Regular, diligent inspection of the system to identify any violations of safety-related codes or other requirements, and the expeditious elimination or correction of any situations in noncompliance with the safety-related codes and requirements set forth in this chapter or in other city codes or ordinances.

Thirty days after each calendar quarter, an MCS provider subject to this section shall notify the city of the preventive maintenance information available for that calendar quarter, and that such information is available for inspection, examination and review by the city.

§ 227-54 Construction, fire and safety codes.

The franchisee or other MCS provider shall at all times and without exception conduct all of its construction, installation, repair and maintenance activities in accordance with the fire and safety regulations of the city, and all local, state and federal safety regulations, and shall at all times, without limitation or exception, adhere to regulations governing the security of facilities as promulgated by the city.

The codes referred in the preceding subsection are standard and customary to the multichannel service industry and include, but are not limited to, electrical, construction, fire, safety, health, building and zoning codes.

To provide for the maximum protection of the health and safety of persons and property in the city, the intent of this section is to require 100% compliance with the National Electrical Safety Code (NESC) and the National Electrical Code and other applicable electrical building and fire codes, rules and regulations at all times, subject only to force majeure exceptions. For clarifications, this is intended to mean that the city adopts a policy of zero tolerance of safety-related violations associated with any multichannel system in the city.

It shall be the responsibility and obligation of any franchisee or other MCS provider to immediately by phone, and the next day in writing for purposes of the city's records, report to the city any violation of safety codes that are identified and are not able to be remedied, or are not remedied, within 24 hours of their identification, so as enable the city to take any needed precautions to alert or otherwise protect persons and property in the city.

It shall further be the immediate and primary responsibility of the affected or transgressing MCS provider to place appropriate and effective warning signs and protective devices or barriers at the site of any such safety violations that create an imminent danger or threat, as in the reasonable determination of the city may be needed and directed by the city.

Notwithstanding anything to the contrary in the section in this chapter entitled "Fines," there shall be no fines or other penalty applied or assessed against a franchisee or other MCS provider for safety-related violations that are voluntarily and of its own accord and volition reported to the city in accordance with the previous Subsection D, provided that the first report of a situation not in compliance with this section that the city receives is that of the franchisee or other service provider whose facilities are not in compliance with the required safety codes and this chapter.

§ 227-55 Alternative user charge.

This section is applicable to any lawfully operating, but unfranchised, MCS provider that does not remit a franchise fee payment to the city. It is also applicable to any MCS provider whose franchise has been ruled unconstitutional, unenforceable or otherwise invalid by a court of competent jurisdiction. Further, this section also is applicable to a franchised MCS provider who has had its franchise fees ruled unconstitutional, unenforceable or invalid by a court of competent jurisdiction.

Where not specifically prohibited by federal or state law, and as an alternative to and in lieu of the imposition of a franchise fee as set forth in this chapter, the city may impose an alternative user charge and require remittance of such by an affected MCS provider to help in recouping the cost of administering, monitoring and enforcing compliance with a franchise agreement, other agreement, license or permit, and applicable law and regulation, and for the cost of the maintenance of the public property and rights-of-way occupied by the multichannel system.

The alternative user charge shall be based on the estimated cost of the time of city staff required to administer, monitor and enforce compliance by the MCS provider, and the cost of maintaining the public property and rights-of-way occupied by the multichannel system. However, in no event shall the alternative user charge exceed the maximum amount that would have been permitted to be imposed as a franchise fee for the payment and reporting period.

An alternative user charge is adopted in order to recover the cost incurred by the city in administering, monitoring and enforcing the MCS provider's compliance with the franchise or other agreement or permit, and applicable law, rule, regulation and code, and the cost of maintaining the public property and rights-of-way occupied by the multichannel system. However, an affected MCS provider and the city may agree to an alternative charge that is based on either a flat percentage of gross revenue or a given dollar amount, so long as that charge does not exceed the maximum amount that would have been permitted to be imposed as a franchise fee for the payment and reporting period at the time of the exercise of this option.

It is expressly understood that a franchise fee and an alternative user charge will not be imposed on the same MCS provider at the same time, for the same period, unless otherwise mutually agreed to.

Should the alternative user charge ever exceed the maximum amount that would have been permitted to be imposed as a franchise fee, then the alternative user charge shall be reduced to an amount not greater than the maximum amount that would have been permitted to be imposed as a franchise fee, and any overpayment shall promptly be returned to the MCS provider upon request.

The alternative user charge assessed shall be payable to the city quarterly on a calendar year basis.

In the event that the alternative user charge is based on a percentage of revenue, to assist the city in determining the accuracy and completeness of the alternative user charge payments, the MCS provider shall file with the city a complete, detailed, accurate statement of all realized revenues attributable to and occasioned by the operation of the system and the grant of the franchise, or other agreement, license or permit within the city, for the period for which the payment is required, whether received by the franchisee or other MCS provider directly, or any parent, affiliate or subsidiary. The statement shall be certified by a certified public accountant or a qualified officer of the MCS provider or its parent with respect to the statement's accuracy and completeness.

The alternative user charge payment shall be made to the city not later than 60 days after the end of each calendar year quarter.

The MCS provider shall also provide annually, within 90 days after the end of the MCS provider's fiscal year, a report certified by a certified public accountant or an officer of the MCS provider or its parent, verifying all earned gross revenues.

§ 227-56 Franchise required; exception.

No person or MCS provider shall be permitted to construct, operate or maintain a multichannel system which requires the laying or positioning or use of cable (whether coaxial, fiber or a functional equivalent) in, along or across the streets or rights-of-way of the city, without having first obtained an MCS franchise, other agreement, license or permit, unless such person or MCS provider is exempted under state law (including any applicable rule or regulation of the PSC), or not required to do so under the Cable Act.

Consistent with the Cable Act, no franchise, other agreement, license or permit shall be required for either the city, or any local or municipal authority affiliated with the city, to own a multichannel system or operate as an MCS provider in the city.

§ 227-57 Authority to grant nonexclusive franchises; required permitting.

Consistent with Section 621(a)(1) of the Cable Act (codified at 47 USC 541), the City Council may award one or more nonexclusive multichannel service franchises or other agreements, licenses or permits within its geographical limits.

No franchise or other agreement, license or permit granting authority to construct and operate a multichannel system shall be exclusive.

An MCS provider's application shall be evaluated and approved or disapproved as part of a public proceeding and hearing which affords due process to the city, the applicant and the public, and which is in accordance with applicable federal or state laws, including any applicable rules of the PSC.

Within 90 days after the effective date of a franchise or other agreement, license or permit a franchisee or other MCS provider shall proceed with due diligence and its best efforts to obtain, at its own costs, all necessary permits, licenses and authorizations which are required for the conduct of its business in the city, including, but not limited to, any private easement agreements, any business licenses, utility joint-use or attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations needed to lawfully operate a multichannel system within the city.

A franchisee or other MCS provider shall have in its possession such permits, easements, agreements and licenses prior to the commencement of its multichannel system operations.

§ 227-58 Franchise agreement; minimum requirements.

An MCS provider subject to the city's franchising, licensing or permitting authority may not lay or use any cable (whether coaxial, fiber or a functional equivalent) until the franchise or other agreement, license or permit is fully executed and is in effect, including approval by the PSC as may be applicable.

A franchise, other agreement, license or permit shall be sufficiently detailed so to clearly delineate the rights, duties and obligations of the parties concerned.

As permitted, and as may be applicable to a particular class or type of MCS provider, a franchise, other agreement, license or permit shall, at a minimum, contain and address the following matters, as well as any requirements in accordance with Part 591 of the PSC's Rules, or other rules of the PSC as may be applicable at any time:

A detailed definition of "gross revenue" in order to determine what revenues are subject to any franchise, other agreement, license or permit fee or alternative user charge.

The term or duration of the franchise, other agreement, license or permit.

Indemnity and hold harmless.

Insurance.

Performance and completion bonds or security deposits.

Service area.

Construction, upgrade or rebuild schedule.

Compensation, including franchise, other agreement, license or permit fees.

Continuity of service.

Assignment of an existing franchise, other agreement, license or permit.

(11)

Repeal of prior inconsistent franchise, other agreement, license or permits.

(12)

Severability.

(13)

Force majeure.

(14)

Reference to the law and rules that govern the franchise, other agreement, license or permit.

(15)

Any exemptions or relief from this chapter as may be granted, or any ordinance clarifications noted with respect to the MCS provider's operation of a multichannel system.

(16)

An effective date.

The city reserves the right to require, without limitation, additional matters, issues and subjects to be contained in a franchise, other agreement, license or permit, as may be reasonably deemed necessary or in the interest of the city and its residents, subject to applicable state and federal law and rule.

§ 227-59 Extent of grant of franchise.

Upon an award of a franchise, other agreement, license or permit, in accordance with the terms of such franchise, other agreement, license or permit, an MCS provider required to obtain a franchise, other agreement, license or permit may construct, erect, install, maintain, operate, maintain, repair, replace, remove or restore a multichannel system within the geographical limits set forth in the franchise, other agreement, license or permit.

The multichannel system may be located in, upon, along, across, over and under the streets, rights-of-way, easements and public ways of the city.

Any MCS provider shall be responsible for obtaining any required easements for private property (including privately owned utility or street light poles).

An MCS provider, through a separate pole or utility easement agreement with an affected utility, may locate the multichannel system on, or within, the property of such utility company. This provision specifically includes, but is not limited to, MCS providers classified as cable operators.

§ 227-60 Term of franchise.

The term of an initial MCS franchise, other agreement, license or permit shall be no more than 10 years from the date that a franchise, other agreement, license or permit is approved by the City Council, and is executed by an authorized individual of the city and the affected MCS provider and is approved by the PSC, absent the demonstration of the need for a longer term for financial reasons.

The term of a renewal franchise, other agreement, license or permit shall be for a period not less than 3 1/2 years, nor more than as permitted by the PSC, from the date that a franchise, other agreement, license or permit renewal agreement is both approved by the City Council, and executed by both the Manager and the affected MCS provider, and is approved by the PSC. In the event the PSC does not establish a maximum term for a renewal, such maximum term shall be no more than 10 years, absent the demonstration of the need for a longer term for financial reasons.

§ 227-61 Service area.

Any franchisee, or other MCS provider, shall make service available to all residences, dwellings, businesses or establishments on all public streets and roads throughout the city. There shall not at any time, after completion of the initial construction of the system, be any residence, dwelling, business or establishment situated on or adjacent to any public street or road that is not capable of receiving multichannel service without the need for a line extension, as the term "line extension" is defined in § 227-4 of this chapter. The primary test for exception to the requirements of this section shall be a test of commercial impracticability, as defined under the federal Uniform Commercial Code.

If the city increases the required service area by adding or incorporating additional land areas, through annexation or any other lawful means, the franchisee or other MCS provider shall extend multichannel service to the new locations within 180 days of a written request from city, at no cost to the city.

Notwithstanding Subsection A of this section, the cost for any line extensions, if permitted to be passed through to subscribers incrementally, shall not be apportioned only to those subscribers served by the instant line extension, but shall be apportioned among all subscribers in the city.

Any applicant for an initial franchise, other agreement, license or permit, or the renewal of such, shall submit to the city a plan to provide service to all domiciles and businesses in the city as a part of the application, request or proposal. Such plan shall be subject to the approval of the city.

Further, while such approval may not unreasonably be withheld, any plan for community-wide or universal service requiring more than one year from the start of construction, rebuild or upgrade, or the request for renewal of a franchise, other agreement, license or permit, must be accompanied by a detailed explanation of the reasons for the needed additional time, as well as a date specific by which service is proposed to be available throughout the community.

§ 227-62 Initial and renewal application for franchise; application fee.

For MCS providers classified as cable operators, the City Council shall follow all applicable rules of the PSC with respect to the submission and processing of initial and renewal applications for a franchise, other agreement, license or permit.

For other MCS providers, the City Council may develop rules with respect to the submission and processing of initial applications for a franchise, other agreement, license or permit. Such rules and regulations shall primarily be aimed at determining the legal, financial, technical and character qualifications of the applicant for a franchise, other agreement, license or permit, as well as other matters deemed of importance that are not prohibited by applicable federal law.

Unless prohibited by the state or the PSC, an applicant for an initial franchise, other agreement, license or permit shall pay an initial application fee which shall be no greater than the administrative and consulting costs associated with analyzing, evaluating and processing an initial application for a franchise, other agreement, license or permit. The total application fee must be paid, unless waived by the City Council.

The applicant shall submit to the city, simultaneously with the application or request, a check in the amount of $15,000. If the cost of analyzing, evaluating and processing the application is less than the application fee the city shall return the unexpended amount. However, if the cost of analyzing, evaluating and processing the application is greater than the amount of the application fee, due to the actions, lack of action or lack of cooperation of the applicant, the franchise, other agreement, license or permit shall not be issued or granted until reimbursement of all costs incurred by the city as a result of the application are received.

In the event that the total actual cost of processing the application, in accordance with Subsection C of this section, is less that $15,000, the city shall promptly return any unused portion to the applicant upon conclusion of the process.

§ 227-63 Franchise fees.

Any MCS provider, specifically including but not necessarily limited to any MCS provider classified as a cable operator, that is granted a franchise, other agreement, license or permit, or a franchise renewal, or renewal of an other agreement, license or permit, after the date this chapter becomes effective shall, if permitted by federal law or rule, pay to the city a sum equal to 5% of the annual gross revenue of such MCS provider. Such amount is intended in part to compensate the city for the MCS provider's private, profit-making use and occupancy of the public property and rights-of-way and to recompense the city for the cost of maintaining the public property and rights-of-way occupied by the multichannel system.

The City Council recognizes that, with respect to MCS providers classified as cable operators, those MCS providers may have to remit an annual fee to the PSC. Therefore, to the extent that the remittance of the PSC annual fee, when computed together with any franchise fee paid by the MCS provider, or collected from other and remitted by the MCS provider, or that is owed, is greater than 5% of the cable operator's annual gross revenues, the payment of the PSC annual fee shall be deducted from and credited as an offset against any franchise fee actually paid to the city by the MCS provider, provided that the MCS provider has not elected merely to collect the fee from others, including subscribers, and remit the amount collected to the PSC.

If the FCC, Congress or any other governmental entity with authority to establish the maximum allowable franchise fee ever allows franchising authorities to increase the franchise fee beyond 5% of gross revenue, then the city shall have the authority to increase the franchise fee to the maximum percentage and/or amount allowable.

An MCS provider subject to the collection and remittance of a franchise fee, or its functional equivalent under an other agreement, a permit or a license, shall, automatically and without further notification, pass through to subscribers the amount of any decrease in the franchise fee that is attributable to or calculated on subscriber revenues, in the next monthly bill or periodic invoice, so that the bill or invoice reflects the decrease in the franchise fee on subscriber revenues.

An MCS provider that is subject to the remittance of a franchise fee, or its functional equivalent, shall file with the city, within 45 days after the expiration of each of the MCS providers' fiscal quarters, a detailed financial and revenue report and statement clearly showing the franchise fee or functional equivalent due for the preceding quarter, together with the basis of the calculations thereof. Such statement shall be certified by a certified public accountant or officer of the MCS provider attesting to the accuracy, completeness and veracity of the revenue figures. Such report and statement shall be in the form and format determined necessary by the City Council, or its designee, to reasonably ascertain the accuracy and completeness of the total remittance, as well as the accuracy and completeness of all types, categories and sources of revenue, individually. Further, said report and statement shall show all revenue from whatever source, that is directly or indirectly derived from, or caused to be derived from, or that is attributable to the operation of the multichannel system or the provision of any service by or using the multichannel system. The revenue shall, at least, be reported by service category, type and level, individually, showing appropriate computations and individual and incremental rates for all sources, levels, tiers, clusters and types of service, and other revenue sources by kind and type.

Remittance of the quarterly portion of the franchise fee, or its functional equivalent, shall be rendered to the city at the time the financial and revenue statement is filed.

In the event that remittance is not made by the due date, then such franchised MCS provider may be declared in default of the franchise, other agreement, license or permit, and should the amount owed remain unremitted for an additional 60 days after the date of notification of nonremittance or late remittance, then the franchise, other agreement, license or permit may be revoked, terminated or canceled as noted elsewhere in this chapter.

The city reserves the right to audit a franchised MCS provider's books, if the City Council deems it necessary. If such audit discovers an under-remittance of the franchise fee or its functional equivalent of greater than 2% of the actual amount owed, then the MCS provider shall reimburse the city for the cost of such audit, unless such cost is waived by the City Council. It is specifically understood that the right of audit and recomputation of any, and all, amounts remitted under a franchise, other agreement, license or permit fee shall always be accorded to the City Council.

If an audit, or other research, discovers that the franchise fee or its functional equivalent has been either under-remitted or not remitted for a period exceeding six months from the original due date notwithstanding Subsection G of this section, then the City Council may seek full recovery of the under-remitted or not remitted fees, plus interest not to exceed 15% per year, or if greater than 15% the maximum allowable under state law.

All annual reports due and pertaining to the remittance of the franchise fee, or its functional equivalent, will be certified by an officer of the MCS provider or its parent, and will be provided in the form, format and detail applicable to quarterly reports under Subsection E of this section. Such MCS provider shall maintain records used in the preparation of said reports, to be produced in their totality upon request or demand by the City Council.

No acceptance of any remittance shall be construed as a release of, or an accord, or satisfaction of, any claim that the city might have for further or additional sums payable under the terms of this chapter or a franchise, other agreement, license or permit, or for any other performance or obligation of a franchised MCS provider hereunder.

Payments of compensation made by a franchised MCS provider to the city, or remittances of amounts collected, pursuant to the provisions of this chapter, shall be considered in addition to, and exclusive of, any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect or subsequently adopted.

A franchise fee or its functional equivalent shall not include any items excluded by Section 622(g)(2)(D) of the Cable Act [codified at 47 USC 542(g)(2)(D)].

Nothing in this section shall be construed to limit the authority of the city to require the payment, or the collection and remittance, of a fee or other assessment of any kind, on any person (other than a franchised MCS provider, or an MCS provider operating under another form of agreement or a license or permit) with respect to multichannel service or other programming or communications service provided by such person over a multichannel system, for which charges are assessed to subscribers, but not received by a franchised MCS provider. For purposes of illustration only, this subsection shall include the situation(s) where a provider of a particular service directly bills a subscriber, or the MCS provider acts as collection agent for a provider of a particular service who directly bills a subscriber(s), or where a person leases a channel for commercial use and sells advertising or goods on that channel, and receives the money directly or through a third party.

For any twelve-month period, the fees paid by or remitted by any person who provides any such multichannel service pursuant to Subsection N of this section shall not exceed 5% of such person's gross revenue derived in such period from the operation of the multichannel system in the city, including the provision of service over the system, or such higher percentage as may be authorized by the FCC, Congress or other governmental entity with authority to increase the percentage or amount of such fees.

If, at any time, the highest court of the nation or the highest court of the state invalidates, voids or rules as unconstitutional or unenforceable the concept of franchise fees, then the City Council may impose an alternative user charge on the franchised MCS provider, as provided in this chapter.

In light of Subsection P of this section, in the event the applicable provision of the franchise, other agreement, license or permit were to be ruled unconstitutional or unenforceable, so that the city's source of recompense for the cost of administering this chapter and any franchise agreement, other agreement, license or permit, and the cost of maintaining the public property and rights-of-way, and the right to require fair and reasonable compensation for the private, profit-making use and occupancy of the public property and rights-of-way may be protected, the MCS operator providing service under a franchise, other agreement, license or permit may be required to pay to the city a fee using a different method and manner for the computation and collection of the fee as provided for in this chapter.

Subject to federal law, and notwithstanding anything preceding in this section, nothing shall limit the authority of the city to assess and impose a franchise fee, or its functional equivalent, on any portion, category or type of revenue, or to exempt any portion, category or type of revenue from inclusion in the computational base used to calculate the franchise fee or its functional equivalent, so long as such is done in a nondiscriminatory and competitively neutral manner with respect to competitive MCS providers in the city.

Notwithstanding anything in this section, in the event an MCS provider does not pay the franchise fee itself, but instead, if permitted by federal law or rule, chooses to pass the franchise fee through to subscribers, incrementally and in addition to the amount owed for service, so that the effect is that the franchise fee is paid by the subscribers and not the MCS provider, and is merely collected and remitted by the MCS provider, then in such an instance the MCS provider shall not be permitted to deduct the franchise fee from what is owed for property taxes, or any other taxes or money, due the city.

Pursuant to Section 253(c) of the 1996 Telecommunications Act, the city deems it appropriate to reserve the right to assess, impose and collect rent from an MCS provider occupying and using the publicly owned and/or maintained rights-of-way and other city-owned and/or maintained property, and to assess, impose and collect rent from a franchisee or other MCS provider for the private, profit-making use of the public property and rights-of-way in the city.

§ 227-64 Rent.

In the event franchise fees as historically assessed and calculated are at any time deemed unconstitutional or otherwise unenforceable, and unless specifically prohibited by federal or state law, the city reserves the right to require payment of rent by an MCS provider for the private, profit-making use of the public property and rights-of-way, subject to any statutory limitations or requirements set by state or federal law.

As regards service providers of like or similar kinds or nature, the city shall at all times assure that the imposition of rent is on a nondiscriminatory and competitively neutral manner.

The amount of the rent shall be based upon and shall not exceed the fair market value of the town's property and public rights-of-way, or that portion of the town's property and public rights-of-way used and occupied by the MCS provider, as determined by the town's Assessor, or another qualified individual as may be designated by the city.

The assessment shall be based upon either the fair market value of like or similar property adjacent to the town's property or public rights-of-way that are used and occupied by that portion of the MCS provider's system serving that portion of the city, or the average fair market value of commercially zoned property within the city as determined by ascertaining the average or mean value for the preceding three years, whichever is less.

Notwithstanding anything to the contrary in this section, the city may negotiate with an MCS provider for the in-kind provision of services or other valuable consideration in lieu of all or a portion of the amount that would otherwise be required to be paid as cash. However, the city is not obligated to grant this option to any MCS provider, so long as it applies this authority in a manner among like or similar service providers that is nondiscriminatory and competitively neutral with respect to the value received by the city.

§ 227-65 Assignment, transfer or sale of franchise.

There shall be no assignment of an MCS provider's franchise, other agreement, license or permit in whole, or in part, without the prior express written approval and consent of the City Council.

Any assignment without such prior written consent shall constitute a default of such franchise, other agreement, license or permit, which may, at the discretion and in the judgment of City Council, subject a franchised MCS provider's franchise, other agreement, license or permit to revocation.

An MCS provider classified as a cable operator shall have its franchise, other agreement, license or permit assigned, transferred or sold only in accordance with the Cable Act, FCC rules, state law and PSC rules and regulations, as applicable.

For all MCS providers subject to this section, including those classified as cable operators, the franchise, other agreement, license or permit shall be assigned, transferred or sold only after the City Council determines that the proposed transferee can meet all obligations imposed by the existing franchise agreement, other agreement, license or permit, and that there are no outstanding uncured violations of the franchise, other agreement, license or permit, or of this chapter, and that all money that is owed the city has been paid in full.

§ 227-66 Default of franchise or other agreement; revocation, termination or cancellation.

With respect to franchised MCS providers classified as cable operators, or other MCS providers operating under another form of agreement, a license or a permit, the City Council shall follow the rules and procedures adopted by the state, including those of the PSC, concerning the default, termination, revocation, alteration or suspension of a cable franchise, or other agreement, license or permit, in addition to the payment of fines and the imposition of penalties, if not impermissible under applicable law. In the absence of such rules and procedures by the state, including the PSC, MCS providers classified as cable operators, or other MCS providers operating under another form of agreement, a license or a permit, shall be subject to the rules and procedures noted in Subsections C through L of this section.

For other franchised MCS providers, to the extent permitted by state law, the City Council adopts the rules and procedures (noted in Subsections C through L of this section) concerning the default, revocation, termination or cancellation of an MCS franchise, other agreement, license or permit.

When any event, act or omission on the part of an MCS provider occurs which represents a violation of a provision of this chapter or its franchise, other agreement, license or permit, or compromises the corporate character, or legal, financial or technical ability, integrity and/or stability of the multichannel system or the MCS provider to such a degree that the interests of the customer or subscribers are substantively affected in a negative manner, then such violation, breach, event, act or omission shall be considered a material breach of this chapter, or any franchise, other agreement, license or permit as may be applicable. Under such circumstances, the city shall notify the affected MCS provider, in writing, of the specific breach or violation, and direct such MCS provider to remedy the breach or violation in accordance with the provisions of this chapter.

For illustrative purposes only, the violations, breaches, events, acts and omissions include, but are not limited to: bankruptcy, insolvency, failure to pay taxes or pay or remit franchise fees or the functional equivalent (including an alternative user charge in lieu of the franchise fee or its functional equivalent, if applicable), failure to receive written City Council approval for an assignment or transfer of the franchise, other agreement, license or permit, or failure to abide by the terms and conditions of the franchise, other agreement, license or permit, or the provisions of this chapter, including those involving matters of customer service, consumer protection and safety and safety-related requirements.

Where an MCS provider satisfactorily corrects any of the enumerated conditions to the satisfaction of the city within 60 days, then the procedure intended under this section shall cease, and in no event shall the enumerated condition be weighed against such MCS provider in any subsequent performance review under the terms of the franchise, other agreement, license or permit. However, to protect the health and safety of the public, at the discretion of City Council, violations of safety-related requirements may be required to be corrected, eliminated or otherwise cured in less than 60 days.

A copy of the notice of material breach shall be mailed to the surety on the performance bond, unless otherwise directed by state law.

Within 75 days after such written notice is mailed to an MCS provider, the City Council shall conduct a public hearing on the matter, unless state law requires a different procedure, in which event the state procedure shall control.

The City Council shall provide written notice to the affected MCS provider, and to the surety, of the time and place of said public hearing in a manner consistent with either state law or approved by the City Council.

At the time of the hearing, the affected MCS provider may present information on the current status of the alleged breach of the franchise, other agreement, license or permit. If the situation has been resolved, or steps are being taken to resolve the situation, then the franchised MCS provider shall present the information at the hearing.

If the affected MCS provider fails to attend the hearing, and has not requested a continuance of the hearing, then such MCS provider shall be deemed to have waived its right to a further continuation of the matter, and may be declared in default of the franchise, other agreement, license or permit.

After the public hearing, the City Council may determine the MCS provider to be in compliance and dismiss the matter, or may determine that the MCS provider has cured any noncompliance and thereby dismiss the matter. However, the City Council may determine that a chapter violation exists and remains uncured, or that a violation of the franchise, other agreement, license or permit has been committed and remains uncured. Consequently, upon a finding that the MCS provider violated a material chapter provision, or failed to cure an outstanding violation of this chapter or of the franchise, other agreement, license or permit, the City Council may direct the affected franchised MCS provider to take corrective action within a specified period of time, or may declare such franchised MCS provider in default of the franchise, other agreement, license or permit, and thereafter may revoke, terminate or cancel the franchise, other agreement, license or permit, unless the franchised MCS provider presents sufficient mitigating circumstances.

If the City Council directs corrective action to take place within a specified period of time or declares such franchised MCS provider in default of the franchise, other agreement, license or permit, then that declaration shall be reduced to writing, and the notice of corrective action or default shall be mailed to such franchised MCS provider, and surety, within 21 days of the City Council's action.

If within 60 days, the affected franchised MCS provider, or surety, does not take significant action to rectify the breach, or submit a plan detailing how the affected MCS provider will eliminate the breach, including the proposed time frame for such cure, then the City Council may revoke such MCS provider's franchise, other agreement, license or permit, and shall notify the affected franchised MCS provider and surety forthwith, unless there are mitigating circumstances.

§ 227-67 Performance evaluations.

The City Council reserves the right to design a performance evaluation procedure which periodically monitors compliance of MCS providers with the terms and conditions of both this chapter and any applicable franchise, other agreement, license or permit. Moreover, the City Council may periodically review and determine whether an MCS provider's financial, technical, legal and character qualifications, and its record of meeting community and subscriber needs, as particularly relate, but are not limited, to matters of customer service practices, continue to meet the needs of the community, and to determine if the operational, maintenance and performance levels needed to ensure the uninterrupted and acceptable provision of multichannel services are adequate to meet the needs and reasonable desires of the community. Such performance evaluations may be conducted at least every three years during the term of any franchise, other agreement, license or permit, or more frequently if deemed necessary and appropriate due to complaints or repeated or multiple violations of this chapter or the franchise, other agreement, license or permit.

If, as a result of the evaluation, the City Council determines that the franchised MCS provider has not complied with a provision of this chapter, or its franchise, other agreement, license or permit, then the City Council shall give the franchised MCS provider an opportunity either to correct or remedy the area of noncompliance, or submit documentation or supporting data that resolves or explains the area of noncompliance to the satisfaction of the city.

If the franchised MCS provider fails to correct or resolve an area of noncompliance in a timely manner, or provide an acceptable explanation in a timely manner, then such failure may be treated as a material violation of this chapter or the franchise, other agreement, license or permit, as is appropriate.

§ 227-68 Rates and charges.

To the extent permitted by federal law, including applicable FCC rules and regulations, and state law, including applicable PSC rules and regulations, the City Council is authorized to, and may choose to, regulate the rates for basic multichannel service, which includes basic cable service and those charges (such as converter rental outlet fees) associated with the provision of multichannel service. In the event that the City Council chooses to regulate rates for basic service, the City Council shall follow any, and all, applicable FCC and PSC rules, regulations and procedures concerning rate regulation.

Consistent with federal law, before the City Council exercises its right to impose, approve or deny the rates and charges for multichannel service, the City Council must conduct a public hearing in which to allow an affected MCS provider, or any other interested party, an opportunity to express its views concerning said proposed rate regulation.

Consistent with federal law, if the City Council requires a refund with respect to a particular subscriber rate or charge, then if the MCS provider actually paid the franchise fee and did not merely collect and remit the franchise fee to the city, the MCS provider is eligible for a corresponding reduction in and/or rebate of a portion of the franchise fee, or functional equivalent, that was paid by the MCS provider for the period applicable to the refund.

§ 227-69 Interconnection.

Each and every MCS provider required to provide PEG access channels in the city shall be required to interconnect its multichannel system (through any permissible means) to any other MCS provider's system operating within the city, for the purpose of allowing public, educational or governmental access programming to be provided to all subscribers throughout the city, regardless of which MCS provider provides multichannel service to a particular subscriber.

To the extent that another MCS provider provides public, educational or governmental access programming to the other MCS provider's system, then the other MCS provider shall, in whatever way practicable, promptly notify its subscribers that another MCS provider is providing the particular educational or governmental access programming.

§ 227-70 Periodic regulatory review by City Council.

Between 210 and 30 days prior to the fourth and eighth anniversary dates of the effective date of this chapter, the City Council shall conduct a review and examination of this entire MCS provider chapter.

In conducting such a review and examination of the MCS provider chapter, the City Council shall consider, among other things, the following:

Whether one or more provisions have been superseded, clarified or modified by federal or state law (including PSC rule or regulation).

Whether one or more provisions have been superseded, clarified or modified by a subsequent binding judicial decision.

Whether one or more provisions are unnecessary or ineffective in light of emerging and evolving technologies.

Whether new or different trends relating to MCS providers warrant or necessitate additional safeguards for customer or subscribers and/or subscribers.

Whether the economic and customer or subscriber forces associated with competition have lessened the need for one or more provisions.

If after such a periodic review and examination of the MCS provider chapter the City Council determines that one or more provisions of the MCS provider chapter should be amended, repealed, revised, clarified or deleted, then the City Council may take whatever measures necessary (to the extent permitted by law) in order to accomplish same. It is noted that where warranted and the best interests of the city, the City Council may repeal the entire MCS provider chapter.

Notwithstanding the provisions of Subsection A and C of this section, the City Council may at any time, and in any manner (to the extent permitted by federal, state or local law), amend, add, repeal and/or delete one or more provisions of this chapter.

§ 227-71 Miscellaneous provisions; tampering and unauthorized reception of certain services.

Consistent with the Cable Act, no person shall intercept or receive, or assist in intercepting or receiving, any communications service offered over a multichannel system, unless specifically authorized to do so by an MCS provider, or as may be specifically authorized by law.

For the purpose of this section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for the unauthorized reception of multichannel service as referenced in Subsection A of this section.

Without securing permission from an MCS provider, or making payment to an MCS provider, then no person shall be authorized to make any connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of an authorized or franchised multichannel system for the purpose of receiving or intercepting or assisting others to receive or intercept any cable service provided lawfully by the MCS provider.

Any and all MCS providers are encouraged to work with the City Council in developing and implementing a plan designed to control and eliminate the unauthorized reception of certain multichannel services within the city.

§ 227-72 Fines.

In addition to all other rights and powers vested in and possessed by the city, the city specifically reserves the right to impose fines for violations of this chapter or any franchise, other agreement, license or permit granted under and pursuant to the chapter, or for the violation or breach of any federal, state or local law, rule or regulation, in the event such failure has not been remedied pursuant to procedures set forth in this chapter.

Upon acceptance of a franchise agreement or other agreement, license or permit, or the renewal of any franchise agreement or other agreement, license or permit, a franchisee or other MCS provider shall indicate that it clearly understands that a failure to comply with any time and performance-related requirements, or any breach of a term or condition of such franchise, other agreement, license or permit or of this chapter, or of any federal, state or local law, rule, regulation or code as set forth any agreement or this chapter, may result in the imposition of fines as set forth in this section.

Absent good and just cause and the provision of evidence of good faith efforts to comply, the failure to comply with any time and performance-related requirement stipulated in the franchise agreement or other agreement, license or permit, or this chapter, may result in the imposition of fines as set forth in this section. Fines shall continue to accrue, including during any appeals process, until such time as the payment of fines is received by the city, or is otherwise waived by the city. Failure to pay fines within the time provided shall be a material violation of this chapter, and the franchise agreement or other agreement, license or permit, and shall be cause to proceed against either a letter of credit or bond or other surety or guaranty as provided by the franchisee or other MCS provider. It shall also constitute cause to pursue revocation of the franchise or other agreement, license or permit. The franchisee or other MCS provider shall be charged, and shall pay to the city, the following amounts in fines for the violations listed:

For failure to complete any system construction, reconstruction or upgrade, pursuant to the franchise agreement or other agreement or permit: $500 for each day, or part thereof, that the violation or breach continues.

For failure to provide any data, documents, reports or information required by the franchise or other agreement, license or permit needed to monitor compliance and administer said franchise or other agreement, license or permit, or for failure to cooperate with the city during an application process or system review: $100 for each day, or part thereof, that the violation occurs or continues.

For failure to test, analyze and report on the performance of the system following a written request pursuant to this chapter or a franchise, other agreement, license or permit: $200 for each day, or part thereof, that such noncompliance continues.

For failure to meet the customer service requirements of this chapter or a franchise, other agreement, license or permit: up to $100 for each day, or part thereof, that such noncompliance continues.

For failure to comply with any consumer protection requirements of this chapter or a franchise, other agreement, license or permit: $100 for each day, or part thereof, that such noncompliance continues.

For failure to comply with any requirements regarding deposits and the return of deposits as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

For failure to comply with any requirements regarding the improper or impermissible discontinuance or disconnection of a subscriber's service as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

For failure to comply with any requirements regarding connections and disconnections as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

For failure to comply with any requirements regarding disconnection and downgrade fees as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

For failure to comply with any requirements regarding charges for repair of equipment or service disconnection as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(11)

For failure to comply with any requirements regarding the three-day right of rescission as set forth in state law, or a franchise, other agreement, license or permit: $500 per day per incident for each day or part thereof that such noncompliance continues.

(12)

For failure to comply with any requirements regarding the use and display or identification passes and badges as set forth in this chapter or a franchise, other agreement, license or permit: $50 per day per incident for each day or part thereof that such noncompliance continues.

(13)

For failure to comply with any requirements regarding cleanup and proper installation as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(14)

For failure to comply with any requirements regarding subscribers being advised in writing of specific services and procedures as set forth in this chapter or a franchise, other agreement, license or permit: $50 per day per incident for each day or part thereof that such noncompliance continues.

(15)

For failure to meet any safety-related requirements of this chapter or a franchise, other agreement, license or permit, including fire and electrical codes: up to $500 per failure, for each day or part thereof that such noncompliance continues.

(16)

For failure to pay the full and complete amount of any money owed the city: up to $100 per day, for each day or part thereof that such underpayment continues as measured from the date the original payment was due.

(17)

For failure to comply with any other section, subsection or provision of this chapter, or a franchise agreement or other agreement, license or permit: $50 for each instance of noncompliance or violation, for each day or part thereof that such noncompliance continues.

Notwithstanding anything in the preceding, or any other section of this chapter, after the initial 48 hours following notification by the city to the franchisee or other MCS provider that a violation exists, each day that a violation continues shall constitute and be deemed a separate violation and may be treated as a separate violation.

In the event of an appeal arising out of the enforcement of this section, or in the event of litigation arising out of a dispute regarding the enforceability of any action taken by the city under this section, during the course of such proceeding the franchisee or other MCS provider shall not be excused from the prompt and timely payment of fines as set forth in this section. The amount of the fines in such an instance shall be placed in an escrow account by the city, pending the resolution and decision of the adjudicating entity.

Notwithstanding anything in this section, or any other section of this chapter, a franchisee or other MCS provider may not use the payment of fines or penalties as may be permitted and assessed to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the franchisee or other MCS provider to termination and loss of the franchise or other agreement, license or permit or other operating authority.

§ 227-73 Notice of failure to comply.

The city shall provide notice and opportunity to cure for the failure to comply with a time or performance-related requirement, or breach of a term or condition of an MCS franchise or other agreement, license or permit, or of this chapter, or of any federal, state or local law, rule, regulation or code which the city deems sufficient to warrant the assessment and imposition of fines.

Notwithstanding anything to the contrary in the preceding subsection, or any other subsection of this section, for situations involving violations of safety and safety-related codes and requirements where such are deemed to create an imminent threat or danger to lives or property within the city, and for which the MCS provider has previously been notified of a situation(s) involving noncompliance with the same or similar situations, or aspects of safety and safety-related codes and requirements, the MCS provider shall be notified, but may not be granted an opportunity to remedy or cure prior to the imposition of fines. Rather fines may be assessed and imposed immediately, on a per-occurrence, per-day basis, until the violation(s) is eliminated.

Notice and the opportunity to cure shall be provided to the affected MCS provider in writing, and shall be sent by certified U.S. Mail, return receipt requested, to the franchisee's or other MCS provider's local place of business. The amount of time given the franchisee or other MCS provider to cure any time or performance requirement, or breach of a term or condition of a MCS provider franchise or other agreement or permit, violation of this chapter, or violation of any federal, state or local law, rule or regulation shall be at the discretion of the city, but in no event less than 48 hours, unless otherwise agreed to between the city and the franchisee or other MCS provider, or as set forth in Subsection B of this section. Notwithstanding the preceding, or anything else in this section or this chapter, in the event of a situation in violation of the safety-related requirements of this chapter that endangers or has the reasonable possibility of endangering the health or safety of individuals or property, the forty-eight-hour cure period may be lessened and, in fact, a cure may be required the same day, depending on the seriousness of the matter as a factor of the threat created to the public.

The city may, in its reasonable discretion, grant extensions of time to a franchisee or other MCS provider to cure or remedy, where extraordinary circumstances not precipitated by the franchisee or other MCS provider warrant an extension.

Notwithstanding any notice an opportunity cure requirements of the applicable federal or state law, the issuance of two or more notices to cure for the same or similar time or performance-related requirement, or breach of a term or condition of a franchise or other agreement or permit, or violation of this chapter, or violation of any federal, state or local law, rule, regulation or code within any 12 consecutive month period, shall relieve the city of any obligation to provide further notice and opportunity to cure for subsequent failures to meet any time or performance-related requirements, or breaches of terms or conditions of such franchise or other agreement, license or permit, violations of this chapter, or violations of any federal, state or local law, rule, regulation or code. Evidence of subsequent failures as set forth in this subsection shall be admissible as evidence in a hearing before the City Council on the assessment of fines, provided that the city has provided such evidence to the franchisee or other MCS provider at least 10 days prior to the hearing and the MCS provider has an opportunity to be heard at the hearing.

A notice of intent to assess fines. Fines may be issued concurrently with a notice to cure. If a notice of intent to assess fines is issued concurrently with a notice to cure, fines, if assessed, will accrue commencing with the expiration of the time allowed for an opportunity to cure as set forth in the notice. The notice of intent to assess fines shall state the reason for the assessment and imposition, and shall inform the franchisee or other MCS provider that fines will be assessed from the date of the notice, or the end of the time allowed for an opportunity to cure, whichever is later.

If the franchisee or other MCS provider desires to appeal the city's assessment of fines, it must file a written notice of appeal with the City Clerk, delivered by certified U.S. Mail, within 10 days of the receipt of the notice of intent to assess fines. The City Clerk shall then place the issue of the assessment of fines before the City Council.

The city shall then have served upon the affected MCS provider a written notice of the date, time and place of the meeting, at least 30 days prior to the day of the meeting of the City Council at which the matter will be heard.

Public notice shall be given of the meeting and the issue that is to be considered by the City Council. If the franchisee or other MCS provider fails to appeal the city's assessment of fines within the time required by this section, the city's decision to assess fines shall be final.

The City Council shall, at the date, time and place designated for the hearing, hear and consider issues from the city and the MCS provider and make a determination regarding the alleged violation of this chapter or any franchise, other agreement, license or permit.

The City Council shall hear and consider the matter, including hearing any person interested in the matter wishing to be heard, and review and consider any relevant evidence. After affording the MCS provider required rights of due process to be heard, to present relevant evidence and witnesses and to question any witnesses, the City Council shall determine whether or not there was committed a breach or violation of a time or performance-related requirement, or a breach of a term or condition of the MCS provider's franchise or other agreement, license or permit, or of this chapter, or of any federal, state or local law, rule, regulation or code.

The franchisee or other MCS provider may, at its own expense, make a transcript of any such hearing, or share the costs of obtaining a transcript of such hearing equally with the city if the city has a transcript made.

Within 30 days following the completion and close of the hearing, the City Council shall issue a written decision as regards to whether any failure to comply with any time or performance-related requirement, or breach of a term or condition of the franchise or other agreement, license or permit, or of this chapter, or of any federal, state or local law, rule, regulation or code occurred, based upon the record of the proceeding, stating with particularity the reasons for such decision. A copy of the Council's decision shall be provided to the franchisee or other MCS provider.

Should the City Council find that no breach, violation or failure to comply or perform occurred or, except for situations addressed in Subsection B of this section, that the franchisee or other MCS provider remedied the failure prior to the end of the period allowed for cure, or that the franchisee or other MCS provider instituted substantial actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that fines are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the City Council, the proceedings shall be terminated and no penalty shall be imposed.

The City Council shall be required to base its decision on a preponderance of the evidence from the record established during the City Council's hearing. If the City Council determines that any time or performance-related requirement or breach of a term or condition of the franchise or other agreement, license or permit, or of this chapter, or of any federal, state or local law, rule, regulation or code was the fault of the MCS provider, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this chapter, the City Council may affirm the assessment and imposition of fines. The City Council's decision to affirm the city's assessment of fines shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this chapter.

Prior to imposing any penalty or sanction against the MCS provider for failure to perform any of its obligations under this chapter or its franchise agreement or other agreement or permit, other than fines or termination, the city shall provide the franchisee or other MCS provider notice and opportunity to cure such failure in accordance with the following procedures in Subsection J(7) and (8) of this section.

The city shall provide the franchisee or other MCS provider with written notice specifying the nature of the failure, breach or violation. The franchisee or other MCS provider shall have a period of 48 hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of situations addressed in Subsection B of this section.