[HISTORY: Adopted by the City Council of
the City of Pottsville 9-9-2002 by Ord. No. 677; amended in its entirety 7-11-2005 by Ord. No.
721. Subsequent amendments noted where applicable.]
A.
The City of Pottsville finds that the development
of cable television and communications systems has the potential of
having great benefit and impact upon the people of Pottsville. Because
of the complex and rapidly changing technology associated with cable
television, the City further finds that the public convenience, safety
and general welfare can best be served by establishing regulatory
power which should be vested in the City or such persons as the City
shall designate pursuant to a new ordinance replacing Ordinance No.
215-76 which presently regulates cable television in the City of Pottsville.[1] It is the intent of this ordinance to provide for and
specify the means to attain the best possible public interest and
public purpose in these matters, and any franchise issued pursuant
to this ordinance shall be deemed to include this finding as an integral
part thereof.
[1]
Editor's Note: Prior to enactment of this
Ord. No. 721, Ord. No. 677, adopted 9-9-2002, regulated cable television
in the City of Pottsville.
B.
Further, it is recognized that cable systems have
the capacity to provide not only entertainment and information services
to the City's residents, but can provide a variety of broadband, interactive
communications services to institutions and individuals. Many of these
services involve City agencies and other public institutions by providing
governmental, educational or health care communications.
C.
It is further recognized that cable systems and services
are rapidly changing and will continue to change in the future.
D.
For these purposes, the following goals underlie the
regulations contained herein:
(1)
Communications services should be provided to the
maximum number of City residents.
(2)
The cable system should be capable of accommodating
both the present and reasonably foreseeable future cable-related needs
of the City.
(3)
The cable system authorized by this ordinance shall
be responsive to the needs and interests of the local community and
shall provide the widest possible diversity of information sources
and services to the public.
A.
This ordinance shall be known and may be cited as
"Pottsville Cable Communications Regulatory Ordinance," and it shall
become a part of the ordinances of the City.
B.
This ordinance shall take effect and be in force from
and after its passage and publication.
C.
All ordinances or parts of ordinances in conflict
with the provisions of this ordinance are hereby repealed.
D.
The previous cable television regulatory ordinance,
Ordinance No. 215-76, is hereby superseded by this ordinance.[1]
[1]
Editor's Note: Prior to enactment of this
Ord. No. 721, Ord. No. 677, adopted 9-9-2002, regulated cable television
in the City of Pottsville. Therefore, Ord. No. 215-76 had previously
been superseded by various other cable television related ordinances.
A.
When not inconsistent with the context, words used
in the present tense include the future, and words in the plural number
include the singular number. The word "shall" is mandatory and "may"
is permissive. Words not defined shall have the meanings ascribed
to them in the cable Communications Policy Act of 1984, as amended
from time to time, 47 U.S.C. §§ 521-611 (the "Cable
Act"). Words not defined herein or in the Cable Act shall be given
their common and ordinary meanings.
B.
ACCESS CHANNELS
AFFILIATE
BASIC CABLE SERVICE
BASIC SUBSCRIBER RADIO SERVICE
CABLE ACT
CABLE SERVICE
CABLE SYSTEM
(1)
(2)
(3)
(4)
(5)
CHANNEL or CABLE CHANNEL
CITY or GRANTOR
COMMENCE OPERATION
COUNCIL
CUSTOMER COMPLAINT
DROP
FCC
FRANCHISE
FRANCHISE AGREEMENT
FRANCHISE AREA
FRANCHISEE or GRANTEE
FRANCHISE FEE
GRANTOR
GROSS ANNUAL REVENUES
INSTALLATION
INSTITUTIONAL NETWORK or I-NET
INSTITUTIONAL USERS
LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL
LOCAL ORIGINATION PROGRAMMING
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
OPEN VIDEO SERVICES or OVS
PAY TV
PERSON
PLANT MILE
PREMIUM SERVICES
PROGRAMMER
PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL, COMMUNITY CHANNEL
PUBLIC BUILDING
PUBLIC PROPERTY
PUBLIC WAY
RENEWAL
RESIDENT
RESIDENTIAL SUBSCRIBER
RIGHTS-OF-WAY
SALE
SCHOOL
SERVICE INTERRUPTION
STANDARD INSTALLATION
STATE
STREET
SUBSCRIBER
TRUNK LINE
For the purpose of this ordinance, the following terms,
phrases, words and their derivations shall have the meanings given
herein:
Channel capacity designated for public, educational or governmental
access use, as well as the facilities and equipment required for the
use of such channel capacity.
Each person, directly or indirectly, controlling, controlled
by, or under common control with the franchisee; provided that affiliate
shall in no event mean any limited partner or shareholder holding
an interest of less than 35% of such franchisee, or any creditor of
such franchisee solely by virtue of its status as a creditor and which
is not otherwise an affiliate by reason of owning a controlling interest
in, being owned by, or being under common ownership, common management,
or common control with, such franchisee.
Shall have the meaning given in 47 U.S.C. § 522(3),
as it may be amended from time to time. Currently, this provision
defines basic cable service as any service tier which includes the
retransmission of local television broadcast signals.
Such audio services as the retransmission of broadcast FM
radio signals, shortwave, weather, news, time and other similar audio
services and the transmission of cablecast (nonbroadcast) radio signals
as permitted by the FCC.
The Cable Communications Policy Act of October 30, 1984,
P.L. 88-549, § 2, 98 Stat 2780 (codified at 47 U.S.C. §§ 521-611
[1982 & Supp, V. 1987)] as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L,. No. 102-385, and
the Telecommunications Act of 1996, Pub. L. No. 104-104, as may, from
time to time, be amended.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment,
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include:
A facility that serves only to retransmit the
television signals of one or more television broadcast stations;
A facility that serves subscribers without using
any public rights-of-way;
A facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Communications
Act, except that such facility shall be considered a cable system
[other than for purposes of section 621 (c)] to the extent such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services;
An open video system that complies with § 653
of the Cable Act; or
Any facilities of any electric utility used
solely for operating its electric utility systems.
Shall have the meaning given in 47 U.S.C. § 522(4),
as it may be amended from time to time. Currently, this provision
defines "channel" as a portion of the electromagnetic frequency spectrum
which is used in a cable system and which is capable of delivering
a television channel as defined by the Federal Communications Commission.
The City of Pottsville, Pennsylvania.
That time and date when operation of the cable system is
considered to have commenced, which shall be when the system is fully
constructed, or the adoption of this ordinance and the entering into
of a franchise pursuant hereto; whichever shall last occur; however,
such term does not include the renewal of an existing franchise.
The Council of the City of Pottsville.
Shall have the meaning as set forth in FCC Regulation 76.309
and shall only include a written communication addressed to the local
business office of grantee regarding cable service or cable system
operations requiring subsequent corrective action to the system or
any portion thereof.
A coaxial or other connection from feeder cable to the subscriber/user
television set or other terminal point.
The Federal Communications Commission and any legally appointed
or elected successor entity or organization.
An initial authorization, or renewal thereof (including a
renewal of an authorization which has been granted subject to section
626 of the Cable Act) issued by a franchising authority, whether such
authorization is designated as a franchise, permit, license, resolution,
contract, certificate, agreement, or otherwise, which authorizes the
construction and operation of a cable system.
A franchise granted pursuant to this ordinance, containing
the specific provisions of the franchise granted, including references,
specifications, requirements, and other related matters.
The entire City or portions thereof for which a franchise
is granted under the authority of this ordinance. If not otherwise
stated in the franchise, the franchise area shall be the corporate
limits of the City, including all territory thereafter annexed to
the City.
The natural person(s), partnership(s), domestic and foreign
corporation(s), association(s), joint venture(s) or organization(s)
of any kind which has been legally granted a franchise by the City,
and its lawful successor, transferee or assignee.
Any tax, fee or assessment of any kind imposed by the City
or other governmental entity on a grantee or on a cable subscriber,
or both, solely because of their status as such.
The City of Pottsville as represented by the City Council,
acting within the scope of its jurisdiction and in accordance with
applicable federal, state and local laws.
Revenue (revenue minus bad debts) received by the grantee
from the operation of the cable system to provide cable service within
the franchise area, in accordance with generally accepted accounting
principles, including but not limited to, monthly basic, premium and
pay-per-view service fees (but excluding any portion of such revenues
paid by grantees to suppliers of such services), installation fees
and equipment rental fees. "Gross annual revenue" shall not include
cable system taxes imposed by law on subscribers which the grantee
is obligated to collect; any investment income earned by the grantee;
and advertising commissions deducted by advertising agencies before
advertising revenues are paid over to the grantee. These items shall
be paid to the City whether they are earned directly by grantee or
by an affiliated entity of grantee which provides cable services over
the cable system. Payments by grantee for City business privilege
tax amounts due shall not be a set off against any computation of
gross annual revenues.
The connection of the cable system from feeder cable to subscribers'
terminals and the provision of cable service.
Dedicated capacity and equipment, both upstream and downstream,
to provide video, voice and data communication services to nonresidents.
Governmental, educational, and other nonprofit publicly funded
users delineated in the individual franchise, as may be amended from
time to time with the consent of franchisee.
Any channel designated or dedicated for use by persons unaffiliated
with the grantee, at rates which are fair and reasonable.
Programming which may be produced by the grantee or another
designated entity. This programming may be commercial in nature.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, normal business hours will
include some evening hours at least one night per week and/or some
weekend hours.
Those service conditions which are within the control of
the franchisee. Those conditions which are not within the control
of the franchisee include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily
within the control of the franchisee include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
Any video programming services provided to any person by
a franchisee certified by the FCC to operate an open video system
pursuant to Section 47 U.S.C. § 573, as may be amended,
regardless of the facilities used.
The delivery over the system of per-channel or per-program
programming to subscribers for a separate fee or charge from basic
cable service.
An individual, partnership, association, organization, corporation
or any lawful successor transferee of said individual, partnership,
association, organization or corporation.
A linear mile of strand-bearing cable as measured on the
street or easement from pole to pole or pedestal to pedestal.
Programming or services for which an additional charge is
made beyond the charge for basic subscriber television services, including
but not limited to movies, concerts, variety acts, sporting events
and pay-per-view programs.
Any person or entity who or which produces or otherwise provides
programs, material or information for transmission by video, audio,
digital or other signals, either live or from recorded traces or other
storage media, to users or subscribers by means of the cable system.
Any channel designated or dedicated for use by the general
public or noncommercial organizations which is made available for
use on a first-come-first-served, nondiscriminatory basis.
Any building identified in the applicable franchise, which
is owned, occupied, operated, and controlled by the City.
Any real property owned, occupied and controlled by the City.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways,
utility easements or other public right-of-way under the jurisdiction
of the City, including property over which the City has a sufficient
easement or right-of-way.
A new cable franchise granted to an existing franchisee.
Any person residing in the City as otherwise defined by applicable
law.
A subscriber who receives a service in an individual dwelling
unit where the service is not to be utilized in connection with a
business, trade or profession.
A public way as defined herein.
Includes any sale, exchange, barter or offer for sale.
Any public or nonprofit educational institution, receiving
funding pursuant to Title I of the Elementary and Secondary Education
Act of 1965, 20 U.S.C. § 6301 et seq., as amended from time
to time.
The loss of picture or sound on one or more cable channels.
Any service installation that can be completed using a drop
of 125 feet or less from the existing cable plant.
The Commonwealth of Pennsylvania.
Includes each of the following which have been dedicated
to the public or hereafter dedicated to the public and maintained
under public authority or by others and located within the City limits:
streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public ways and similar ways and extensions
and additions thereto, together with such other public property and
areas that the City shall permit to be included within the definition
of "street" from time to time.
Any person who or which lawfully elects to subscribe to,
for any purpose, a cable service provided by the grantee by means
of or in connection with a cable system, and who pays the charges
therefor, except such persons or entities authorized to receive cable
service without charge as described in the franchise agreement.
The major distribution cable used in cable communications,
which divides into feeder lines which are tapped for service to subscribers.
A.
Grant.
(1)
In the event that the City shall grant to the grantee
a nonexclusive franchise to construct, operate and maintain a cable
system within the City, said franchise shall constitute a right to
provide the services of a cable system as regulated by the provisions
of this ordinance and the franchise agreement.
(2)
The franchise shall be granted under the terms and
conditions contained herein, consistent with applicable statutory
requirements. In the event of conflict between the terms and conditions
of this ordinance, the franchise agreement, applicable local statutory
law or regulations covering the terms and conditions on which the
City can grant a franchise, every effort shall be made for the franchise
agreement to be upheld, and therefore, the terms of the franchise
agreement shall ultimately control.
(3)
Any franchise granted by the City is hereby made subject
to the general police power ordinance provisions now in effect or
to the full extent allowable by law hereafter adopted. Nothing in
the franchise shall be deemed to waive the requirements of the various
codes and ordinances of the City regarding taxes, permits, fees to
be paid or manner of construction.
B.
Use of public streets and ways. For the purpose of
operating and maintaining a cable system in the City, the grantee
may erect, install, construct, repair, replace, reconstruct and retain
in, on, over, under, upon, across and along the public streets and
ways within the City such wires, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals, attachments and
other property and equipment as are necessary or desirable to the
operation of the cable system; provided, however, that the grantee
complies with all lawful design, construction, safety and performance
provisions contained in this ordinance, the franchise agreement and
other applicable local ordinances.
C.
Use of City facilities. At the City's option, the
City may permit a grantee to utilize City-owned conduit or other facilities
for any portion of its cable system. The consideration for the use
of City conduit or other facilities shall be as stated in the franchise
agreement. A reasonable fee for the use of City facilities shall be
established in the franchise agreement and may be adjusted by agreement
of the City and the grantee at the periodic performance evaluations.
D.
Use of grantee facilities. Except replacement poles,
no new poles shall be erected by the grantee without prior approval
of the City with regard to location, height, type and any other pertinent
aspect, in accordance with applicable City Code provisions. The grantee
shall utilize existing poles and conduits where reasonably possible.
Subject to any applicable laws, rules or regulations, the City shall
have the right, during the life of the franchise, to install and maintain
at reasonable expense as determined by fair market value any wire
and pole fixtures upon the poles owned by the grantee that do not
unreasonably interfere with the cable system operations of the grantee.
The City will provide insurance and indemnify grantee for such use
of grantee's poles. The City shall cooperate with the grantee in arranging
for such installation.
E.
Franchise required.
(1)
No cable system shall be allowed to occupy or use
the streets of the City or be allowed to operate without a properly
granted franchise awarded pursuant to the provisions of this ordinance.
(2)
All persons operating cable television systems within
the City shall be required to obtain a franchise for the construction,
operation or maintenance of such system.
F.
Term of franchise. The term of any franchise granted
pursuant to this ordinance or extension of a franchise granted pursuant
to the predecessor to this ordinance, Ordinance No. 215-76, shall
be for no more than the maximum of 15 years from the effective date
of the franchise, unless otherwise stated in the franchise agreement.
G.
Acceptance of franchise.
(1)
Following approval by the City, any franchise granted
pursuant to this ordinance and the rights, privileges and authority
granted thereunder shall take effect and be in force from and after
the date on which the grantee accepts, signs and affixes its corporate
seal (if appropriate) to the franchise agreement, provided that within
30 days immediately following such acceptance, the grantee shall file
with the City its unconditional acceptance of the franchise in a form
acceptable to the City, and promise to comply with and abide by all
its provisions, terms and conditions to the full extent that said
provision, term and conditions are legally applicable and enforceable.
(2)
By accepting the franchise, and subject to applicable
law, the grantee agrees to be bound by all the terms and conditions
contained in this ordinance and said franchise except in the event
of a conflict between this ordinance and said franchise, in which
event the terms of the franchise shall control.
(3)
By accepting the franchise, the grantee acknowledges
that it does so relying upon its own investigation and understanding
of the power and authority of the City in connection with the cable
system and the franchise.
(4)
By accepting the franchise, the grantee acknowledges
that it has not been induced to enter into the franchise by any understanding
or promise or other statement not expressed herein or therein, whether
oral or written, concerning any term or condition of the franchise,
regardless of whether such statement was made by or on behalf of the
City.
(5)
By accepting the franchise, the City acknowledges
that it has not been induced to enter into the franchise by any understanding
or promise or other statement not expressed herein or therein, whether
oral or written, concerning any term or condition of the franchise,
regardless of whether such statement was made by or on behalf of the
grantee.
H.
Franchise nonexclusive.
(1)
Any cable franchise granted by the City shall be nonexclusive.
The grantor specifically reserves the right to grant, at any time,
such additional franchises for a cable system or any component thereof,
to any other person including itself, as it deems appropriate, subject
to this ordinance and applicable state and federal law.
(2)
The material terms and conditions of any cable franchises
granted or renewed after the effective date of this ordinance shall
be, when taken as a whole, no less burdensome or more beneficial than
any other cable franchises granted or renewed subject to this ordinance,
including but not limited to franchise fees, insurance, system build-out
requirements, performance bonds or similar instruments, public, education
and government access channels and support, customer service standards,
required reports and related record keeping, and notice and opportunity
to cure.
I.
Selection of initial franchisee.
(1)
In selecting a franchisee pursuant to this ordinance,
the City will prepare a request for proposals to seek bids for a cable
system to be established under a franchise by the City. This request
for proposals will contain information and instructions relating to
the preparation and filing of proposals; conditions regarding the
installation, operation, and maintenance of a cable system; and the
criteria to be used in evaluating applicant proposals. Any person
desiring an initial franchise for a cable system shall file an application
with the City. A nonrefundable application fee as may hereinafter
be established by the City shall accompany the application, which
shall not be considered or credited against the collection of applicable
franchise fee. The provisions of this section will not be applicable
to the renewal of any franchise.
(2)
Applicants may be evaluated according to the following
criteria:
(a)
Installation plan. Consideration may be given
to an installation plan that would provide the flexibility needed
to adjust to new developments, maintenance practices, and services
that would be available to the subscriber and the community immediately
and in the future.
(b)
Rate schedule. Consideration may be given to
applicants with the most reasonable installation and subscriber rate
schedule.
(c)
Financial soundness and capability. The evidence
of financial ability required in the applicant's proposal will be
such as to assure the ability to complete the entire system within
a maximum of three years from the date the franchise is granted. The
City will also consider the applicant's ability to operate the cable
system and provide the necessary services.
(d)
Demonstrated experience in operating a cable
system. Consideration may be given to evidence of the applicant's
experience in operating a cable system, where such evidence would
show or tend to show or confirm the ability of the applicant to furnish
sufficient and dependable service to the potential public and private
users.
(e)
Technical capability. The City may consider
the quality of service offered, including signal quality, response
to customer complaints, and billing practices.
(f)
Future needs. Consideration may be given to
the franchisee's ability to meet the future cable-related community
needs and interests, taking into account the cost of meeting such
needs and interests.
(g)
Additional considerations. The City may consider
any additional information that it deems applicable.
J.
Time is of the essence to this agreement. Whenever
the franchise agreement shall set forth any time for an act to be
performed by or on behalf of the grantee, such time shall be deemed
of the essence, and any failure of the grantee to perform within the
time allotted after due notice and a reasonable time to cure may be
sufficient ground for the City to invoke the penalties and remedies
set forth in this ordinance.
K.
Law governs. In any controversy or dispute under this
ordinance, the law of the state or federal law and/or regulations
shall apply; where there is a choice of law, the laws of the Commonwealth
of Pennsylvania shall be applied.
L.
Severability. If any section, subsection, sentence,
clause, phrase or portion of this ordinance is for any reason held
invalid or unconstitutional by any court of competent jurisdiction
or by any federal, state or local statute or regulation, such portion
shall be deemed a separate, distinct and independent provision, and
such holding shall not affect the validity of the remaining portions
thereof.
M.
Transfer of ownership or control.
(1)
Transfer of franchise. For purposes of this Subsection M, the term "transfer" or "transferred" shall mean: the disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 51% or more at one time or cumulatively over the term of the franchise of the ownership or controlling interest in the cable system to a corporation, partnership, limited partnership, trust or association or person or group of persons acting in concert which is not under the same ultimate control as the grantee; provided, however, that any pledge, assignment or hypothecation of the cable system to a financial institution as security for debt shall not be considered a "transfer."
(2)
Any franchise granted hereunder cannot in any event
be transferred without the prior consent of the City, which consent
shall not be unreasonably withheld. No such consent shall be required,
however, for (a) a transfer in trust, by mortgage, hypothecation,
or by assignment of any rights, title or interest of the grantee in
the cable system in order to secure indebtedness; or (b) a transfer
to an entity owned and/or controlled by a parent corporation of grantee.
(3)
The grantee shall promptly notify the City of any
actual or proposed transfer and comply with applicable provisions
of the Cable Act and rules of the FCC. This section shall not apply
to a transfer to, acquisition by or merger into a wholly owned subsidiary
or an affiliated entity wholly owned by the grantee and/or under the
same ultimate control as the grantee.
(4)
In accordance with applicable provisions of the Cable
Act, for the purpose of determining whether it shall consent to such
transfer, the City may inquire into the legal, financial, character
and technical qualifications of the prospective controlling party,
and the grantee shall assist the City in any such inquiry.
(5)
Assumption of control. Upon default by the franchisee,
a financial institution having a pledge of the franchise or its assets
for the advancement of money for the construction and/or operation
of the cable system shall notify the City of its intent to have it
or its designees take control of and operate the cable system. Said
financial institution shall submit a plan for the operation of the
cable system that will ensure continued service and compliance with
all franchise obligations during the term that the financial institution
exercises control over the cable system. The financial institution
shall not exercise control over the cable system for a period exceeding
one year without the approval of the City, which approval shall not
be unreasonably withheld, and during said period of time the financial
institution shall have the right to petition for transfer of the franchise
to another grantee as though it were the original grantee. If the
City finds that such transfer, after considering the legal, financial,
character, and technical and other public interest qualifications
of the applicant is satisfactory, the City shall transfer and assign
the rights and obligations of such franchisee as in the public interest.
The consent of the City to such transfer shall not be unreasonably
withheld.
(6)
The City may require the grantee to furnish information
to assist in the review of the proposed transfer of the franchise
and will, consistent with the Cable Act and FCC rules, either approve
or deny the transfer within 120 days after the date it receives notice
of the transfer in writing from a grantee.
(7)
The consent or approval of the City to any transfer
of the grantee shall not constitute a waiver or release of the rights
of the City in and to the streets, and any transfer shall, by its
terms, be expressly subordinate to the terms and conditions of the
franchise.
N.
Franchise renewal.
(1)
Renewal. Upon completion of the term of any franchise
or extension granted under this ordinance, the City, subject to the
Cable Act, FCC rules and other applicable law, may grant or deny renewal
of the franchise of the grantee.
(2)
Renewal procedures. The grantee's franchise shall
be subject to renewal according to the terms, procedures and provisions
set forth in the Cable Act, FCC rules and other applicable law.
O.
Police powers.
(1)
In accepting the franchise, the grantee acknowledges
that its rights hereunder are subject to the police power of the City
to adopt and enforce general ordinances necessary to the safety and
welfare of the public; and it agrees to comply with all applicable
general laws and ordinances enacted by the City pursuant to such power.
(2)
Any conflict between the provisions of this ordinance
or the franchise and any other present or future lawful exercise of
the City's police powers shall be resolved in favor of the latter,
except that any such exercise that is not of general application in
the jurisdiction or applies exclusively to the grantee or cable systems
which contains provisions inconsistent with this ordinance or the
franchise agreement shall prevail only if upon such exercise the City
finds that an emergency exists constituting a danger to health, safety,
property or general welfare and such exercise is mandated by law.
P.
Franchise fees.
(1)
Because the City finds that the streets of the county,
state and City to be used by the grantee in the operation of its cable
system within the boundaries of the franchise area are valuable public
properties acquired and maintained by the City at expense to its taxpayers;
and the grant to the grantee of the use of said streets is a valuable
right without which the grantee would be required to invest substantial
capital in right-of-way costs and acquisitions; and the administration
of any franchise issued pursuant to this ordinance imposes upon the
City additional regulator responsibility and expense, a grantee of
any franchise hereunder shall pay to the City an annual fee of 5%
of the gross annual revenues; or the maximum amount permitted under
applicable federal law if such maximum is greater than 5%; which gross
annual revenues, for the purpose of calculating the franchise fee,
shall include the amount of the franchise fee. This annual franchise
payment shall be in addition to any other fee which is not defined
as a franchise fee by the Cable Act and shall commence as of the effective
date of the franchise. The City shall be furnished a statement certified
by a financial representative of the grantee with each quarterly payment
to the City. The statement shall include a line item for every source
of revenue received and the amount of revenue received from each source
for the period covered by the payment.
(2)
In the event that it is determined by the federal
or state government or any agency thereof or by any court of competent
jurisdiction upon final adjudication that the City lacks the authority
to impose the maximum franchise fee permitted by federal law or that
the federal, state or local government or any agency thereof lacks
jurisdiction to impose franchise fees, then the parties shall follow
that determination or adjudication.
(3)
Subject to the cable act, the franchise fee payment
shall be in addition to any lawful tax or payment owed to the City
by the grantee.
(4)
Acceptance by the City. No acceptance of any payment
by the City shall be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable
as a franchise fee by a grantee under this ordinance or for the performance
of any other obligation of the grantee.
(5)
Failure to make required payment. In the event that
any franchise payment or recomputed amount is not made on or before
the dates specified herein, the grantee shall pay as additional compensation
an interest charge, computed from such due date, at the annual rate
equal to the commercial prime interest rate in effect upon the due
date.
(6)
Quarterly payment. The franchise fee shall be paid
quarterly to the City Clerk of the City of Pottsville, payable to
the City of Pottsville. The grantee shall file a complete and accurate
verified statement of all Gross Annual Revenue within the City during
the period for which said quarterly payment is made, and said payment
shall be made to the City not later than 45 days after the expiration
of each calendar quarter. Quarters end on the last day in the months
of March, June, September and December.
(7)
Inspection. The City, upon reasonable notice, shall have the right to inspect the grantee's revenue records and the right to audit, limited to the previous three full calendar years and to recompute any amounts determined to be payable under this ordinance. The auditor shall be selected by the City, and the audit shall be conducted in conformance with generally accepted auditing procedures and generally accepted accounting principles. Up to $4,000 of the cost of an audit shall be at the expense of the grantee if it is found an amount greater than 105% of the original amount paid (i.e., a franchise fee payment of 5% or more) is due the City, but only to the extent of the amount due. In the event that grantee and the City do not agree that the amount represents an underpayment, upon the completion of any such audit by the City, the City shall provide to the franchisee a final report, which sets forth the City's findings in detail, including any and all substantiating documentation. The franchisee shall have 30 days from the receipt of the report to provide the City with a written response including any substantiating documentation. Any finally settled amount(s) due to the City as a result of such inspection shall be paid to the City by the franchisee within 30 days from receipt of written notice of the acceptance of such finally settled amount(s) from the City. For purposes of this § A226-4P(7), the term "finally settled amount(s)" shall mean the agreed upon underpayment, if any, to the franchising authority by the grantee as a result of any such audit. Provided, however, that any such audit shall take place within three years from the date the City receives such payment, after which period any such payment shall be considered final.
Q.
Forfeiture or revocation.
(1)
Grounds for revocation. The City reserves the right to revoke any franchise granted hereunder and to rescind all rights and privileges associated with the franchise after providing notice and a period for cure as provided for in § A226-4Q. Each of the following circumstances shall represent a default and breach under the ordinance and the franchise grant and shall be grounds for revocation of the franchise:
(a)
If the grantee shall default in the performance
of any of the material obligations under this ordinance or the franchise
agreement entered into by and between the City and the grantee.
(b)
If the grantee shall fail to provide or maintain
in full force and effect the liability and indemnification coverage
or the performance bond as required herein.
(c)
If the grantee shall knowingly violate any orders
or rulings of any regulatory body having jurisdiction over the grantee
relative to the material provisions of this ordinance for the franchise,
unless such rulings are subject to appeal, but only during such period
of appeal, if and only if a supersede order is in effect.
(d)
If the grantee evades any of the material provisions
of this ordinance or the franchise agreement or practices any fraud
upon the City or cable subscribers.
(e)
If applicable, the grantee's construction schedule
is delayed later than the schedule contained in the franchise agreement
or beyond any extended date set by the City.
(f)
If the grantee becomes insolvent, unable or
unwilling to pay its debts or is adjudicated bankrupt.
(g)
Failure to restore service after 96 consecutive
hours of interrupted service throughout the entire service area, except
when approval of such interruption is obtained from the City or such
failure is the result of a force majeure and/or beyond the control
of the grantee.
(h)
Material misrepresentation of fact, as adjudicated
by a court of competent jurisdiction in the application for or negotiation
of the franchise or any extension or renewal thereof.
(i)
Consistent with applicable law, if the grantee
ceases to provide services for a period of 30 days as set forth in
the agreement for any reason within the control of the grantee over
the cable system.
(j)
If the grantee shall fail to pay any taxes or
assessments levied by the City of Pottsville within 60 days after
the same are due and after the entry of a final, unappealable order
of a court of competent jurisdiction upholding the validity of such
taxes or assessments and their enforceability against the grantee.
(2)
Effect of circumstances beyond control of the grantee.
The grantee shall not be declared at fault or be subject to any sanction
under any provision of this ordinance in any case in which performance
of any such provision is prevented for reasons beyond the grantee's
control.
(3)
Pending litigation. Pending litigation or any appeal
to any regulatory body or court having jurisdiction over the grantee
shall not excuse the grantee from the performance of its obligations
under this ordinance or the franchise agreement unless injunctive
relief is obtained.
(4)
Procedure prior to revocation.
(a)
Prior to any revocation of a franchise, the
City shall make written demand that the grantee comply with a specified
requirement, limitation, term, condition, rule or regulation or correct
any action deemed cause for revocation. If the failure, refusal or
neglect of the grantee continues for a period of 60 days following
the receipt of such written demand, and the grantee has failed to
provide a written explanation or to request additional time to cure
any alleged default, the City shall place its request for termination
of the franchise upon a regular Council meeting agenda. The City shall
cause to be served upon the grantee at least seven days prior to the
date of such Council meeting a written notice of this intent to request
such termination and the time and place of the meeting, notice of
which shall be published by the City Clerk at least once, seven days
before such meeting, in a newspaper of general circulation within
the City.
(b)
The Council shall hear any persons interested
therein and shall determine in its discretion whether or not any failure,
refusal or neglect by the grantee was with just cause.
(c)
If such failure, refusal or neglect by the grantee
was with just cause, as reasonably determined by the City, then the
City shall prepare a written finding in support of its determination
and the Council shall direct the grantee to comply within a specified
time and manner and upon such terms and conditions as are reasonable.
(5)
Disposition of facilities. In the event that a franchise
is not renewed or is revoked or otherwise terminated, the City may,
in accordance with this ordinance and applicable law, order the removal
of the cable system facilities required by public necessity from the
City within a reasonable period of time as determined by the City.
(6)
Restoration of property. In the event it is required
to remove its plant, structures and equipment, the grantee shall refill,
at its own expense, any excavation that shall be made by it and shall
leave all public ways and places in as good a condition as that prevailing
prior to the grantee's removal of its equipment and appliances without
affecting the condition of the public ways and public places and cables,
wires, attachments and poles after removal. Upon request, the grantee
shall remove cable from City-owned conduit. The liability, indemnity,
insurance and performance bond as provided herein shall continue in
full force and effect during the period of removal and until full
compliance by the grantee with the terms and conditions of this section,
this ordinance and the franchise agreement.
(7)
Restoration by City; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection Q(6) above, or any other work required by City law or ordinance within such reasonable time as may be established and to a condition similar to that existing prior to the grantee's work, the City, following notice and an opportunity to cure, may cause such work to be done, and the grantee shall reimburse the City the cost thereof within 30 days after receipt of an itemized list of such costs or the City may recover such costs through the security fund provided by the grantee. The City shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
R.
Receivership and foreclosure; termination by insolvency.
Subject to applicable law, the failure of grantee to file a petition
to discharge a bankruptcy petition within a period of 120 days shall
constitute a material breach of the franchise and shall subject grantee
to termination or lawful revocation of the franchise in accordance
with the notice and opportunity to cure and other applicable sections
of this ordinance.
S.
Equal opportunity policy. Equal opportunity employment
shall be afforded by all operators of cable television systems to
all qualified and qualifiable persons, and no person shall be discriminated
against in employment because of race, color, religion, age, national
origin, sex or physical handicap. The grantee shall comply with all
equal opportunity provisions lawfully enacted by federal, state and
local authorities, as well as all such provisions contained in this
ordinance and the franchise agreement.
T.
Notices. All notices from the grantee to the City
pursuant to this ordinance and the franchise agreement shall be to
the City Administrator or his/her designee.
U.
Failure of City to enforce this franchise is not a
waiver of the terms thereof. The grantee shall not be excused from
complying with any of the terms and conditions of this ordinance or
the franchise by any failure of the City upon any one or more occasions
to insist upon or to seek compliance with any such terms or conditions.
V.
Rights reserved to the grantor.
(1)
Right of inspection of records. The City shall have
the right to inspect on a confidential basis those books, records,
reports, maps, plans, financial statements and other like materials
of the grantee as they relate to the cable system which are reasonably
necessary in order to verify compliance with this ordinance and the
franchise agreement, during normal business hours. The grantee shall
make available such information as may be reasonably requested by
the City.
(2)
Right of inspection of construction. Upon 10 days'
advance written notice the City shall have the right to inspect all
construction or installation work performed subject to the provisions
of the franchise and to request that an appropriately certified engineering
professional make such system-related tests as it shall find necessary
to ensure compliance with the terms of this ordinance and other pertinent
provisions of the federal law.
(3)
Right of inspection of property. At all reasonable
times, upon reasonable advance written notice, the grantee shall permit
examination by any duly authorized and appropriately certified engineering
professional representative of the City of the cable system, together
with any appurtenant property of the grantee situated within the City,
as may relate to the terms of this ordinance or the franchise granted
pursuant hereto.
A.
Regulatory authority. The City shall exercise appropriate
regulatory authority under the provisions of this ordinance and applicable
law. This authority shall be vested in the City Council and administered
through the City Administrator or his designee in order to provide
day-to-day administration and enforcement of the provisions of this
ordinance and any franchise granted hereunder and to carry out the
City's responsibilities with regard to cable communications.
B.
Supervision of the franchise.
(1)
The City shall have the following regulatory responsibility.
(a)
Administration and enforcement of the provisions
of this ordinance and any franchise granted hereunder.
(b)
Award, renewal, extension or termination of
a franchise pursuant to the provisions of this ordinance, the franchise
and other applicable law.
(c)
Consent prior to sale or transfer of any franchise
granted hereunder, which shall not be unreasonably withheld.
(d)
Performance evaluation.
(e)
Rate regulation, If applicable.
(2)
The City also reserves the right to perform the following
functions:
(a)
Develop objectives and coordinate activities
related to the operation of government channels, if applicable.
(b)
Provide technical, programming and operational
support to public agency users, such as City departments, schools
and health care institutions, if applicable.
(c)
Approve procedures and nontechnical standards
for institutional operations and services, use of dedicated access
channels and sharing of public facilities, if applicable.
(d)
Analyze plans for expansion, interconnection
and growth of cable services.
(e)
Analyze the possibility of integrating cable
communications with other City, state or regional telecommunications
networks.
(f)
Formulate and recommend long-range telecommunications
policy for the City, and determine the future cable-related needs
and interests of the community.
(g)
Provide the administrative effort necessary
for the conduct of performance evaluations and any other activities
required for the administration of the franchise.
(h)
Monitor the grantee's process for handling customer
complaints and periodically inspect, upon reasonable advance written
notice, and analyze the records related to such complaints in accordance
with any franchise entered into.
(i)
Receive applications for rate increases, if
applicable, and provide staff assistance in the analysis and recommendations
thereto.
(j)
Monitor the grantee's adherence to operational
standards, service requirements and line extension policies and advise
the grantee, to writing, of any deficiency which may require cure
under the franchise or this ordinance.
(k)
Assure compliance with applicable laws and ordinances.
(l)
Arrange for certified professional engineering
tests and analysis of equipment and equipment performance as needed
to ensure compliance with this ordinance and the franchise.
(m)
Assure continuity in service.
(n)
Receive for examination all data and reports
required by this ordinance.
(o)
Make Cable Television Advisory Committee appointments.
(3)
Responsibilities of the Cable Television Advisory
Committee. The responsibilities of the cable Television Advisory Committee,
if such a committee is appointed by the City Council, shall include
but not be limited to the following:
(a)
Monitor and advise the City Council and City
administration of the provisions of the City's Cable Television Ordinance
and related documents.
(b)
Serve as advisory body for the public access
and educational access channels of cable television and any institutional
networks that may be developed.
(c)
Conduct performance evaluations in association
with the City Council and the City administration.
(d)
Advise the City government of objectives to
be obtained in the City's cable system based upon its continued evaluation
of the City's cable television franchise, cable technology and the
future cable-related needs and interests of the community.
(e)
Prepare an annual report to the Council.
(f)
Cooperate with the City and the grantee in fulfilling
its responsibilities herein.
C.
Rates and charges.
(1)
Subject to applicable law, the grantee shall establish
rates that are nondiscriminatory within the same general class of
subscribers in the franchise area for all services. Nothing contained
herein shall prohibit the grantee from offering discounts to commercial
and multiple-family dwelling subscribers billed on a bulk basis, promotional
discounts, or reduced installation rates for subscribers who have
multiple services.
(2)
To the extent that the Cable Act, rules of the FCC,
or other applicable law may now, or as the same may hereafter be amended
to, authorize the City to regulate the rates for any particular service
tiers, service packages, equipment or any other services provided
by the grantee, the City shall have the right to exercise rate regulation
to the full extent authorized or to refrain from exercising such regulation
for any period of time at the sole discretion of the City. In such
event, the City shall provide written notice to the grantee of its
intent to do so, providing citation to the applicable provision of
the law.
(3)
The grantee shall have the authority and the right,
in accordance with federal law, to itemize on its billing statements
any federal, state or City taxes, franchise fees or charges, however
designated, of the FCC or other governmental regulatory body, including
copyright payments, directly imposed on subscribers or on the grantee.
(4)
The grantee may, at its own discretion, waive, reduce
or suspend connection fees for specific or indeterminate periods and/or
the monthly service from time to time at its discretion.
D.
Performance evaluation.
(1)
The City and the grantee shall, at the option of the
City, hold scheduled performance evaluation sessions once every year.
All such evaluation sessions shall be open to the public. The City
shall provide 20 business days' advance written notice to the grantee
of its intent to conduct such an evaluation session, so that grantee
has appropriate time to gather information. The City shall postpone
the evaluation session for a reasonable amount of time in the event
grantee provides a written request for an extension of time to gather
information.
(2)
All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation in accordance
with public notice, as provided in accordance with applicable law.
If possible, the grantee shall notify subscribers of all such evaluation
sessions by announcement on a designated channel on the cable system
between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive
days preceding each session.
(3)
Topics which may be discussed at any scheduled evaluation
session may include but not be limited to cable system performance,
the grantee compliance with this ordinance and the franchise, customer
service and complaint response, subscriber privacy, services provided,
programming offered, service rate structures, franchise fees, penalties,
free or discounted services, applications of new technologies, judicial
and FCC filings and line extensions.
E.
Schedule of liquidated damages. For the violation
of specified provisions of this ordinance and a franchise granted
pursuant to it, the City Council shall act so as to notify the grantee,
in writing, of the violation, and the grantee shall be allowed 60
days, or such other longer amount of time as the City may specify,
to correct such violation. The City may impose such liquidated damages
as may be agreed to by the City and the grantee, as set forth in the
franchise agreement.
A.
The City may require, as part of a franchise or franchise
renewal, that a grantee provide or post a performance bond, insurance
and proof of insurance and provisions for indemnification of the City,
as shall be specifically set forth in any franchise agreement. Insurance
coverages shall include general liability, automobile liability and
workers' compensation.
B.
Nonwaiver. Neither the provisions of this section,
nor any bonds accepted by the City pursuant thereto, nor any damages
recovered by the City thereunder will be construed to excuse unfaithful
performance by the franchisee or limit the liability of the franchisee
under this ordinance or the franchise for damages, either to the full
amount of the bond or otherwise.
A.
Authority to construct.
(1)
Authorization to commence construction and application
procedures. If necessary, within 30 days of the acceptance by the
grantee of a franchise, the grantee shall register the cable system
with the FCC and apply for contracts for use of poles. Within 30 days
after completion of the make-ready survey identifying the routes of
the cable system facility, the grantee shall apply for all additional
licenses, if any, from the state, City or other necessary parties,
such as the railroads for crossing over or under their property. In
any event, all necessary applications for permits, licenses, certificates
and authorizations shall be applied for in a timely fashion so that
such filing and processing shall not interfere with or cause delay
with the construction schedule as outlined in the franchise. Failure
to make such timely application and timely filing, if any, shall constitute
a substantial violation of this ordinance.
(2)
Power to contract. Upon grant of the franchise and
in order to construct, operate and maintain a cable system in the
City, the grantee may enter into contracts with any public utility
companies or any other owner or lessee of any poles or underground
areas located within or without the City; obtain right-of-way permits
from appropriate City, state, county and federal officials necessary
to cross or otherwise use highways or roads under their respective
jurisdictions; obtain permission from the Federal Aviation Administration
to erect and maintain antennas; and obtain whatever other permits
City, county, state or federal agencies may require.
B.
Construction, operation, and maintenance standards.
(1)
Compliance with construction, operation, and maintenance
standards. The grantee shall construct, install, operate and maintain
its cable system in a manner consistent with all laws, ordinances,
construction standards, governmental requirements, and FCC technical
standards. The cable system shall be designed, constructed, operated
and maintained for twenty-four-hour-a-day continuous operation.
(2)
Contractor qualifications. Any contractor proposed
for work of construction, installation, operation, maintenance and
repair of cable system equipment must be properly licensed under laws
of the state and all lawful local ordinances.
(3)
The grantee's cable system and associated equipment
erected by the grantee within the City shall be so located as to cause
minimum interference with the proper use of streets, alleys and other
public ways and places and to cause minimum interference with the
rights and reasonable convenience of property owners who adjoin any
of said streets, alleys and other public ways and places. Except in
cases of emergency or exigent circumstances, no pole or other fixtures
placed in any public ways by the grantee shall be placed in such a
manner as to interfere with normal travel on such public way.
(4)
The City does not guarantee the accuracy of any maps
showing the horizontal or vertical location of existing substructures.
In public rights-of-way, where necessary, the location shall be verified
by excavation.
(5)
Construction, installation, operation and maintenance
of the cable system shall be performed in an orderly and workmanlike-manner,
in accordance with the then-current technological and NESC standards.
All cables and wires shall be installed, where possible, parallel
with electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(6)
The grantee shall at all times comply with, as applicable
to the cable system and system facilities, the following:
(7)
In any event, the cable system shall not endanger
or interfere with the safety of persons or property in the franchise
area or other areas where the grantee may have equipment located.
(8)
Any antenna structure used in the cable system shall
comply with construction, marking and lighting of antenna structure
standards as required by federal and state law or regulation.
(9)
All worker facilities, conditions and procedures that
are used during construction, installation, operation and maintenance
of the cable system shall comply with the standards of the Occupational
Safety and Health Administration.
(10)
FCC rules and regulations shall govern regarding
RF leakage.
C.
System construction schedule. The franchise agreement
shall specify any necessary construction schedule.
D.
Service throughout City. Subject to the payment of
such cable fees as billed, the grantee shall provide service to any
residential dwelling units within the City and any additional areas
annexed to the City, provided that such area has a density of residential
dwelling units equal to 30 units per aerial mile of cable plant and
50 units per underground mile of cable plant. A grantee will extend
service to new areas meeting this density and contiguous to existing
cable plant within 90 days after a request from the City.
E.
Use of streets.
(1)
All installations shall be underground in those areas
of the City where public utilities providing both telephone and electric
service are underground at the time of installation. In areas where
either telephone or electric utility facilities are above ground at
the time of installation, the grantee may install its service above
ground, provided that at such time as those facilities are required
to be placed underground by the City or are placed underground, the
grantee shall likewise place its services underground without additional
cost to the City but shall have the right to take such costs into
effect when determining rates for cable services in its franchise
area. Where not otherwise required to be placed underground by this
ordinance or the franchise agreement, the grantee's cable system shall
be located underground at the request of the adjacent property owner,
provided that the excess cost over the aerial location shall be borne
by the property owner making the request. All cable passing under
the roadway shall be installed in conduit.
(2)
Poor to construction or alteration which substantially
modifies the existing structure of the cable system, however, the
grantee shall in each case file plans with the appropriate City agencies
as required by the current City Code provision, complete use agreements
with the utility companies and obtain all necessary construction permits
required by law or regulation.
(3)
Interference with persons, improvement, public and
private property and utilities. The grantee's cable system and facilities,
including poles, lines, equipment and all appurtenances, shall be
located, erected and maintained so that such facilities shall:
(a)
Not endanger or interfere with the health, safety,
or lives of persons.
(b)
Not interfere with the free and proper use of
public streets, alleys, bridges, easements or other public ways, places
or property, except to the extent possible during actual construction,
repair or operation.
(c)
Not interfere with the rights and reasonable
convenience of private property owners, except to the extent possible
during actual construction, repair or operation.
(d)
Consistent with applicable City Code provisions,
not obstruct, hinder or interfere with any gas, electric, water or
telephone facilities or other utilities located within the City.
(4)
Restoration. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the grantee shall, at its own
cost and expense and in a manner approved by the City, replace and
restore all paving, sidewalk, driveway, landscaping or surface of
any street or alley disturbed, in substantially the same condition
and in a good workmanlike, timely manner to a condition comparable
to that existing prior to such work. Weather permitting, such restoration
shall be undertaken within no more than 30 days after the damage is
incurred and shall be completed as soon as reasonably possible thereafter.
(5)
Relocation of the facilities. In the event that at
any time during the period of this ordinance the City, county or state
shall lawfully elect to alter or change the grade of any street, alley
or other public ways, the grantee, upon reasonable notice by the proper
authority, shall remove or relocate as necessary its poles, wires,
cables, underground conduits, manholes and other fixtures at its own
expense.
(6)
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued
by the City, temporarily raise or lower its wire to permit the moving
of buildings. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same, and the
grantee shall have the authority to require such payment in advance.
The grantee shall be given not less than 15 working days' advance
notice to arrange for such temporary wire changes.
(7)
Tree trimming. The grantee shall have the authority,
except when in conflict with existing City ordinances or City authorized
regulations, to trim any trees upon and overhanging public rights-of-way
so as to prevent the branches of such trees from coming in contact
with cable system facilities.
(8)
Easements. All necessary easements over and under
private property shall be arranged for by the grantee.
F.
Construction reporting requirements. Upon written
request, within 120 days of the initiation of construction of the
cable system, the grantee shall provide the City with a written progress
report, detailing work completed to date. Such report shall include
a description of the progress in applying for any necessary agreements,
licenses or certifications and any other information the City Administrator
may deem necessary.
G.
Tests and performance monitoring (applicable for new
and, where appropriate, existing systems).
(1)
Upon written request by the City, not later than 90
days after any new or substantially rebuilt portion of the cable system
is made available for service to subscriber, the grantee shall conduct
technical performance tests to demonstrate full compliance with all
technical standards contained in this ordinance and the franchise
agreement and the technical standards and guidelines of the FCC.
(2)
Such tests shall be performed and/or supervised by
the cable system technical manager who shall have proper training
and experience. Upon written request, a copy of the report shall be
submitted to the City, describing test results, instrumentation, calibration
and test procedures and the qualification of the engineer responsible
for the tests.
(3)
In accordance with FCC rules and regulations, cable
system monitor test points shall be established at or near the output
of the last amplifier in the longest feeder line at or near trunk
line extremities within the franchise area. Such periodic tests shall
be made at the test points as specified by the FCC. In the event that
procedures are not specified by the FCC, the procedures specified
by the FCC on the effective date of this franchise shall be utilized
by the grantee.
(4)
In addition to the performance test reports required
herein, a copy of any performance test reports required by the FCC
shall be submitted to the City upon written request within 60 days
of completion.
(5)
Whenever there has been a trend of similar, verified
complaints made or when there exists other reliable evidence which,
in the reasonable judgment of the City, casts doubt to the reliability
or quality of the grantee's cable system, the City shall have the
right and authority to compel the grantee to test, analyze and report
on the performance of its cable system. Reports on such tests shall
be delivered to the City no later than 14 days after the City formally
makes a written request and notifies the grantee and shall include
the following information: the nature of the complaints which precipitated
the special tests; what cable system component was tested; the equipment
used and procedures employed to said testing; the results of such
tests; and methods by which said complaints were resolved. Said tests
and analyses shall be performed and/or supervised by the cable system
technical manager, who shall sign all records of the special tests
and forward the same to the City with a report interpreting the results
of the tests and recommending what actions should be taken by the
City. All such tests shall be at the expense of the grantee.
(6)
The City shall have the right to employ, at its expense,
qualified professional consultants certified as professionals in their
respective field(s) if necessary or desirable to assist in the administration
of this or any other section of this ordinance or the franchise agreement.
A.
Design, services, and capabilities.
(1)
The cable system. Every cable system shall pass by every single-family dwelling unit within the franchise area in accordance with Section § A226-7D of this ordinance. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in this ordinance unless otherwise specified in the franchise. The cable system shall be described in a franchise and will have the capacity to meet current and future needs in the City as determined by the City Council in accordance with the cable act, taking into consideration the reasonable cost of meeting the needs.
(2)
Complimentary service. Each grantee shall provide
complimentary service for the City as may be set forth in the franchise
agreement.
(3)
Use of franchisee's facilities. Subject to any applicable
state or federal regulations, the City shall have the right to install
and maintain, upon the poles and within the underground pipes and
conduits of a franchisee, any wires and fixtures desired by the City
for public purposes. The specific terms and conditions of such access
shall be set out in the individual franchise agreement. Provided,
however, that such use by grantor shall not interfere with the current
or future use by franchisee or any preexisting user or lessor of franchisee's
facilities; such use by grantor is restricted to noncommercial public
purposes; grantor takes reasonable precautions to prevent use of franchisee's
facilities in any manner that results in an inappropriate use thereof,
or any loss or damage to the cable system. For the purposes of this
subsection, "public purposes" includes, but is not limited to, the
use of the structures and installations for City fire, police, traffic,
utility, and/or signal systems, but not for commercial cable system
purposes in competition with the franchisee; to the extent provided
by state law, the City holds franchisee harmless against and from
all claims, demands, costs, or liabilities of every kind and nature
whatsoever arising out of such use of said poles or conduits; and
at the franchisee's sole discretion, the City may be required either
to pay a reasonable rental fee or otherwise reasonably compensate
the franchisee for the use of such conduit or other equipment, provided,
however, the franchisee agrees that such compensation or charge will
not exceed those paid by it to public utilities.
(4)
Closed captioning and descriptive audio service. Every
franchisee will make audio descriptive services and closed captioning
capabilities available to the extent required by state and federal
law.
(5)
Standby power. In accordance with FCC rules and regulations
the franchisee shall provide standby power.
(6)
HDTV conversion. Conversion to High Definition Television
(HDTV) format shall occur in accordance with applicable law.
(7)
Proof of performance testing. To ensure high quality
of service on the access channels, results of proof of performance
testing as required by applicable federal law throughout the system
and on all required channels will be made available to the City upon
request to the extent required by the franchise. Every franchisee
will monitor the cable system to determine and ensure that the level
of technical quality of the system's transmission of access channels
is in conformance with the FCC rules and is the same as on other channels
transmitted on the cable system.
B.
Service to subscribers and users. Subject to applicable
law and concurrently with the activation of the cable system in the
City, the grantee shall provide all services to subscribers as described
herein and in the franchise agreement.
(1)
The cable system shall carry the broad categories
of programming and services listed in the franchise agreement. Should
the grantee desire to change the selection of programs or services
offered on any of its tiers, it shall maintain the mix, quality and
level of services provided over the cable system. Any such change
in programs or services offered shall comply with the conditions and
procedures contained in the franchise agreement and shall be reported
to the City at least 30 days prior to the proposed implementation.
The grantee shall use its best efforts to ensure diversity of programming.
(2)
At its sole discretion, the City, in a franchise granted
pursuant hereto, may request that the grantee provide and maintain
public and/or governmental and/or municipal access channels. The number
and type of access channels shall be specified in the franchise agreement.
(3)
The public access channel(s) shall be a specifically
designated channel available on a first-come-first-served, nondiscriminatory
basis.
(4)
The grantee shall fully provide, at a minimum, services,
facilities and equipment for public, educational and government access
as indicated in the franchise agreement, but shall have no further
responsibility hereunder.
(5)
The grantee shall have the right to utilize any of
the required access channels for its own purposes to the extent such
channels are not utilized for the cablecasting of access programming.
C.
EAS, emergency alert system. Grantee shall comply
with all applicable federal and state rules and regulations regarding
broadcast and dissemination of emergency information.
D.
Institutional network and institutional service. Every
grantee shall, to the extent required in its franchise agreement and
subject to applicable law, provide or, if an institutional network
exists, fund on an equal basis with other cable providers, an institutional
network that provides two-way broadband capabilities for noncommercial
use by governmental or educational organizations designated by the
City.
E.
Customer service standards, service calls and compliance
procedures.
(1)
Cable system office hours and telephone availability.
(a)
Every grantee shall maintain a local office
within 10 miles of the franchise area. Such office shall be open during
normal business hours. Every grantee also shall maintain a publicly
listed toll-free or collect call telephone access line that is available
to subscribers 24 hours a day, seven days a week. The local or toll-free
numbers shall be listed, with appropriate explanations on subscribers'
bills.
(b)
Every grantee shall have trained representatives
available to respond to subscriber telephone inquiries during normal
business hours. The term "trained representatives" shall mean employees
of the grantee who have the authority and capability while speaking
with a subscriber to, among other things, answer billing questions.
adjust bills, and schedule service and installation calls.
(c)
After normal business hours, the telephone access
line may be answered by a service or an automated response system,
including an answering machine. Inquiries received after normal business
hours must be responded to by a trained representative on the next
business day.
(d)
Upon reasonable prior written request, a grantee
shall prepare and distribute to the grantor a calendar of holidays
and business days on which the operator will be closed.
(e)
Under normal operating conditions, telephone
answer time by a customer service representative or automated response
unit, including wait time, shall not exceed 30 seconds. If a call
must be transferred, transfer time shall not exceed 30 seconds. These
standards shall be met no less then 90% of the time as measured on
a semiannual basis under normal operating conditions.
(f)
Under normal operating conditions, subscribers
will receive a busy signal less than 3% of the time.
(g)
The period of three hours following major outages
(more than 25% of the subscribers) or periods of natural disasters
are not included in the response requirements above, provided that
grantee has used reasonable best efforts to provide voice-mail information
about the outage on phone answering equipment and the system bulletin
board (assuming outage is not City-wide)
(h)
Grantee shall respond to all subscriber or user
inquiries or complaints within 10 business days of the inquiry or
complaint, except to the extent a more stringent standard is set forth
for specific types of activities, inquiries or complaints herein or
in the franchise agreement.
(i)
On a semiannual basis, the grantee upon written
request will provide the grantor with reports for hold time, busy
signals, and abandonment rate and if requested by the grantor, the
grantee will meet with the grantor to review such reports. The grantor
may allow periods of excused noncompliance if the grantee can provide
reasonable documentation that these periods of noncompliance were
not within normal operating conditions.
[2]
Should the grantee be found to be in noncompliance,
the grantor shall notify the grantee in writing and specify the basis
for the finding. Upon notification, the grantee shall have 30 days
to cure such noncompliance.
[3]
If the grantee, based upon the available monthly
data, fails to cure the noncompliance within the thirty-day period,
the grantor may commence enforcement procedures.
(2)
Installation, outages, and service calls. Under normal
operating conditions, each of the following standards must be met
no less than 95% of the time as measured on a quarterly basis:
(a)
To the extent practical, at the time an appointment
is scheduled, in accordance with applicable FCC rules and regulations,
the grantee shall inform the subscriber of service procedures, required
payments, possible delays, phone or field verification procedures
which are related to the appointment and/or possible rescheduling/cancellation.
(b)
The appointment window alternatives for standard
installations and service calls will be within a maximum four-hour
time block during normal business hours. Grantees may schedule service
calls and other installation activities outside of normal business
hours for the express convenience of a subscriber, if so requested.
(c)
No grantee may cancel an appointment with a
subscriber after the close of business on the business day prior to
the scheduled appointment.
(d)
If a grantee's representative is running late
for an appointment with a subscriber and will not be able to keep
the appointment as scheduled, all reasonable efforts will be made
to contact the subscriber. The appointment must be rescheduled, as
necessary, at a time that is convenient for the subscriber.
(e)
The grantee may phone the subscriber within
the appointment window to verify that the appointment is still needed.
If the subscriber telephone is answered by a machine or service, the
grantee must leave a message which includes a number the subscriber
may use to call back to confirm or reschedule the appointment.
(f)
Upon arrival at the subscriber's address, if
the grantee verifies that a subscriber is not at the address during
the scheduled appointment window, the grantee shall leave a door tag
or similar notice with the name of the person leaving the notice,
the time the person determined that the subscriber was not at home,
and a telephone number the subscriber may call back to confirm or
reschedule an appointment.
(g)
Grantee shall require that any vehicle used
for the installation, construction, maintenance, or repair of a cable
system shall bear the identification of the contractor or the applicable
grantee in a conspicuous place and manner.
(h)
Reconnections due to erroneous disconnection
based on billing or technical errors must be completed at no charge
within 24 hours of notification by the affected subscriber.
(i)
Reconnections after a disconnection attributed
to nonpayment of bills must be completed within seven business days
of grantee receipt of back payment, provided that any bank draft received
for such payment has been processed and cleared through banking channels.
(j)
A subscriber's preference as to the point of
entry into a residence shall be observed whenever feasible. Runs in
building interiors shall be as unobtrusive as reasonably possible
and outlets shall be located for the convenience of the subscriber.
The grantee shall use due care in the process of installation and
shall repair any damage caused by grantee to the subscriber's property
caused by installation work performed by grantee. Such restoration
shall be undertaken as soon as possible after the damage is incurred,
shall be subject to reasonable subscriber approval of the corrective
action, and grantee shall use its best efforts to complete the corrective
action within no more than 30 days after the damage is incurred. Should
such restoration not be corrected within 30 days, the grantee shall
notify the subscriber as to the cause for the delay and the date when
such action shall be completed.
(3)
Repairs and interruptions.
(a)
Every grantee will begin working on service
interruptions and outages within a reasonable timeframe but in no
event later than 24 hours after the service interruption becomes known.
[1]
Any reports of no picture/no sound must be responded
to within 24 hours of such report.
[2]
Work not requiring the grantee to enter subscriber
premises (or property) shall not require the subscriber to be available
for an appointment and shall not be delayed on account of the grantee's
inability to arrange an appointment with the subscriber.
(b)
Work on all other requests for service must
begin by the next business day after notification of the problem and
must ordinarily be completed within 72 hours of the initial request.
If for reasons beyond the grantee's control a longer time for the
completion of such repairs is necessitated, the grantee shall exercise
all due diligence to complete the work in the shortest period of time
possible.
(c)
Outside repairs to cable plant that cannot be
made by the initial service technician dispatched shall be rescheduled
within 24 hours of the originally scheduled service call. The subscriber
does not need to be home for outside plant and line repairs.
(d)
A grantee may interrupt service only for good
cause and for the shortest time possible, including interruption for
system upgrade, maintenance and repair. Routine maintenance shall
occur at times that affect the fewest number of subscribers. The grantee
shall post override notices on the system to advise subscribers in
advance of planned service interruptions. To the extent that specific
neighborhoods will be affected by a planned outage, such as during
an upgrade, the grantee shall provide advance notice through telephone
calls and/or door hangers.
(e)
upon written or credible oral request, a grantee
shall provide a pro rata credit for service for each service interruption
exceeding four hours in any twenty-four-hour period, unless it is
demonstrated that the subscriber caused the outage, or the outage
was planned as part of an upgrade or other work of which the City
and the subscriber received appropriate prior notification or the
service interruption was determined to be beyond the control of grantee.
These credits and refunds shall be made available upon request by
subscriber.
(f)
A service interruption shall be as defined in
FCC regulations: the loss of picture or sound on one or more cable
channels.
(g)
Within one hour of an identified outage, service
technicians will respond and use all available reasonable means to
correct the outage in accordance with FCC regulations.
(4)
Communications between grantees and subscribers.
(a)
Notifications to subscribers:
[1]
In accordance with applicable law, every grantee
shall provide written information to subscribers on each of the following
topics at the time of installation, at least annually to all subscribers,
at any time upon request, and at least 30 days prior to making significant
changes in such information:
[a]
Products and services offered;
[b]
Prices and options for programming
services and conditions of subscription to programming and other services
and facilities.
[c]
Installation and maintenance policies
including, when applicable, information regarding the subscriber's
home wiring rights and information describing ownership of internal
wiring during the period service is provided;
[d]
Instructions on how to use services;
[e]
Channel positions of programming
offered on a system;
[f]
Billing and complaint procedures,
including the name, address and telephone number of the City;
[g]
The availability of converters,
lockout devices or other signal control devices;
[h]
The address and telephone number
of the grantee's office to which complaints may be reported and, when
applicable, the grantee's community unit identifier as specified by
the FCC.
[2]
Subscribers will be given 30 days advance notice
of any changes in rates, programming services, or channel positions
through any written means that are reasonably likely to bring such
information to the attention of subscribers.
(b)
Billing.
[1]
Bills must be clear, concise, and understandable.
Bills must be itemized, with itemizations including, but not limited
to, applicable service tier charges and equipment charges.
[2]
Bills must clearly show a specific payment due
date.
[3]
If a grantee chooses to itemize, as a separate
line item on bills, franchise area or other government-imposed fees
attributable to the total bill, such fees must be shown in accordance
with any applicable law concerning the grantee's ability to itemize
such fees.
[4]
Bills must also clearly delineate all activity
during the billing period, including optional charges, rebates, and
credits. Nothing in this section prohibits or restricts a grantee
from offering packages of programming to subscribers and to identify
such packages on the subscriber bill.
[5]
The billing statement must clearly and conspicuously
indicate the past due date, and if applicable the date certain that
a subscriber's service will be disconnected and a telephone number
for the subscriber to call to make payment arrangements or otherwise
resolve a billing dispute.
[6]
Negative option billing is prohibited unless
applicable federal law specifically requires that the grantee be permitted
to engage in such practice.
[7]
In case of a billing dispute, a grantee must
respond to a written complaint addressed to grantee's local office
from a subscriber within 30 days. Credits for service shall be issued
no later than the subscriber's next billing cycle after determination
that the credit is warranted.
(c)
Late payment for cable service. No processing
fees for late payment, however denominated, shall be added to a subscriber's
bill less than 30 calendar days after the date of the bill by the
subscriber. All such charges shall be separately stated on the subscriber's
bill.
(d)
Rebate for service failure. Upon written or
credible oral request, grantee shall provide a service refund in its
billings subsequent to system or signal outage resulting in signal
and service failure to a subscriber for 48 hours or more. The refund
shall be in proportion to the normal monthly charge for a subscriber.
(5)
Complaint log. Subject to the privacy provisions of
47 U.S.C. § 521 et seq., grantor and every grantee shall
prepare and maintain written records of all complaints or trouble
calls made to them and the resolution of such complaints, including
the date of such resolution. Such written records shall be on file
at the office of each grantee. Every grantee shall make available
to grantor a written summary of such complaints and their resolution
upon written request.
(6)
Lockout device. Every grantee shall provide to any
subscriber upon request for sale or lease a lockout device for blocking
both video and audio portions of any channel(s) of programming entering
the subscriber's premises.
(7)
Periodic subscriber survey.
(a)
Upon 60 days' advance written notice, every
grantee shall allow grantor to insert into grantee's monthly subscriber
billing statements a written survey on an annual basis. The grantor
shall be responsible for any costs incurred by a grantee that are
related to the conduct of such surveys.
(b)
The grantor may periodically elect to supplement
such annual subscriber surveys with a statistically-valid telephone
survey.
(8)
Line extension policy. No resident shall be refused
service arbitrarily. Unless otherwise set forth in the franchise agreement,
whenever a grantee receives a request for cable service in an unserved
portion of the franchise area where there are at least 30 dwelling
units (which shall be interpreted to include businesses that have
contractually agreed to subscribe to cable service) within one linear
cable mile of the grantee's nearest trunk or distribution cable from
which it is technically feasible to extend service, or the dwelling
unit is within 125 feet of grantee's distribution cable, it shall
extend its cable system to such subscriber at no cost, other than
the published standard installation fee charged to all subscribers.
(9)
Grantee shall comply with applicable provisions of
the Americans with Disabilities Act regarding provision of service
to physically challenged customers.
(10)
Dispute resolution. Every grantee shall establish
procedures for receiving, acting upon, and resolving customer complaints,
and crediting customer accounts, without intervention by the grantor.
Such procedures shall be as set forth in the franchise agreement.
F.
Protection of subscriber privacy.
(1)
Protection of subscriber privacy mandatory. The grantee
shall at all times protect the privacy of subscribers, as provided
in this ordinance and consistent with other applicable federal, state
and local laws.
(2)
Notice of privacy provisions. At the time of entering
into an agreement to provide cable service or other service to a subscriber
and at least once a year thereafter, the grantee shall provide notice
in the form of a separate written statement to the subscriber which
clearly and conspicuously informs the subscriber of the privacy rights
of the subscriber and the limitations placed upon the grantee in accordance
with applicable federal subscriber privacy provisions.
(3)
All provisions of this section are subject to the
provisions of P.L. 107-56 (October 26. 2001) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, known as the "USA PATRIOT ACT."
(4)
Disclosure of subscriber information prohibited. Unless
the grantee has granted the subscriber the opportunity to limit or
prohibit such disclosure in accordance with the Cable Act, the grantee
shall not sell or otherwise make available to any party any list of
the names and addresses of individual subscribers, any list which
identifies the viewing habits of individual subscribers or any personal
data, social security number, income and other data the company may
have on file about individual subscribers, except as necessary to
render or conduct a legitimate business activity related to a cable
service or other service provided by the grantee to the subscriber;
provided, however, that such disclosure shall not reveal, directly
or indirectly, the extent of viewing or other use by the subscriber
of a cable service or other service provided by the grantee or the
nature of any transaction made by the subscriber over the cable system.
(5)
The grantee shall not predicate regular subscriber
service on the subscriber's grant or denial of permission to collect.
maintain or disclose personally identifiable information unless such
information is necessary for credit check or billing purposes. A subscriber
may at any time revoke any permission given by delivering to the grantee
a written statement of that intent.
(6)
Each subscriber shall be provided access to all personally
identifiable information regarding such subscriber that the grantee
collects or maintains or allows to be collected or maintained, and
such subscriber shall be provided the opportunity to correct any error
in such information.
(7)
This section is not intended to prohibit the use or
transmission of signals useful only for the control or measurement
of cable system performance or signal theft.
G.
Rights of individuals.
(1)
Nondiscrimination required. The grantee shall comply
with all applicable federal and state statutes dealing with nondiscrimination.
(2)
Subscriber contracts. The subscriber should receive
a complete copy of any form provided by the grantee that is signed
by the subscriber at the time of signing.
H.
Reporting requirements. Each grantee shall submit
a written report to the City with respect to the preceeding calendar
year containing the following information at the following time intervals:
(1)
Quarterly reports. Within 30 days after the close
of each calendar quarter, the grantee shall submit a quarterly report
to the grantor that includes:
(a)
A numerical summary of repair requests by fix
codes covering the previous quarter;
(b)
A numerical report on the number of total service
outages with a duration of three or more hours during the previous
quarter; and
(c)
A numerical summary of customer service standards,
including telephone answer time, busy signal time, outage response
and installation response for the previous quarter.
(2)
Annual reports. Within 60 days of the close of each
calendar year, the grantee shall submit a report to the grantor that
includes:
(a)
Customer service and operational information.
[1]
A system overview that summarizes the previous
year's activities, including major system events, channel and price
changes, community programming, subscriber totals and physical miles
of plant construction and plant in operation during the previous year.
[2]
A current price list and channel line-up.
[3]
Copies of all required notices sent to subscribers,
including subscriber privacy, availability of signals, equipment compatibility
and service complaints and procedures.
[4]
A year-end summary of repair requests, outages
and customer service standards.
[5]
A projection of significant plans or changes
for the coming year.
(b)
Financial and ownership information.
[1]
An ownership report indicating the legal entity
that holds the franchise.
[2]
An annual, internally audited and certified
report showing subscriber revenue from each category of service and
every source of nonsubscriber revenue.
[3]
An annual statement of capital expenditures
within the franchise area, including the cost of construction and
equipment.
[4]
A list of members of the parent corporation
board of directors and local management team.
[5]
The grantee shall also submit a copy of the
corporate annual report to the grantor as soon as it is available.
A.
Notwithstanding anything to the contrary set forth
in this section, the grantee shall not be required to disclose information
which it reasonably deems to be proprietary or confidential in nature.
The franchising authority agrees to treat any information disclosed
by the grantee as confidential and only to disclose it to employees,
representatives, and agents of the franchising authority that have
a need to know, or in order to enforce this franchise agreement and
who agree to maintain the confidentiality of all such information.
The grantee shall not be required to provide subscriber information
in violation of Section 631 of the Cable Act. For purposes of this
section, the terms "proprietary" or "confidential" include, but are
not limited to, information relating to the cable system design, customer
lists, marketing plans, financial information unrelated to the calculation
of franchise fees or rates pursuant to FCC rules, or other information
that is reasonably determined by the grantee to be competitively sensitive.
B.
The grantee shall permit any duly authorized representative
of the City to examine and copy all maps and other records kept or
maintained by the grantee or under its control concerning the operations,
affairs, transactions or property of the grantee in accordance with
§ A226-9A(1). If any of such maps or records are not kept
in the City or upon reasonable request are not made available in the
City and if the City shall determine that an examination of such maps
or records is necessary or appropriate to the performance of any of
their duties, then all travel and maintenance and expenses necessarily
incurred in making such examination shall be paid by the grantee.
C.
In accordance with applicable law, if the City is
granted the authority to regulate the grantee's rates and charges
or if the grantee is seeking to renew its franchise agreement, then
the City shall have the additional right to inspect, upon reasonable
notice, during normal business hours, the grantee's books, records
and financial information reasonably necessary to verify, support
or challenge the grantee's rates and charges or the grantee's financial
ability to provide the services, facilities and equipment as set forth
in the grantee's proposal for renewal. All information, data and material
inspected, reviewed or learned pursuant to this inspection right shall
be strictly confidential, if so marked or identified by grantee.
A.
Captions. The captions to sections throughout this
ordinance are intended solely to facilitate reading and reference
to the sections and provisions of this ordinance. Such captions shall
not affect the meaning or interpretation of this ordinance.
B.
Franchise applications. Applicants for a franchise
shall submit to the City written applications utilizing the standard
format provided by the City, at the time and place designated by the
City for accepting applications and including the designated application
fee.
C.
Applicable law. This ordinance is subject to applicable
federal and state law, including the cable act.
D.
Force majeure. If, by reason of force majeure, either
party is unable in whole or in part to carry out its obligations hereunder,
said party shall not be deemed in violation or default during the
continuance of such inability. The term "force majeure," as used herein,
shall mean the following: acts of God: acts of public enemies; orders
of any kind of the government of the United States of America or of
the Commonwealth of Pennsylvania or any of their departments, agencies,
political subdivisions or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes;
volcanic activity; storms; floods; washouts; droughts; civil disturbances;
and explosions.
E.
Franchise. Whenever any provision in any franchise
issued pursuant to the provisions of this ordinance conflicts with
the language hereof, the provision set forth in the franchise agreement
shall control.
F.
Retention of rights. Nothing contained herein shall
be construed as nor be deemed to be a waiver by the grantee of any
statutory, constitutional or other legal rights of the grantee, and
the grantee may exercise whatever remedies or rights it may have or
may at any time or in any manner subsequently acquire under applicable
law.
G.
"Reasonable notice" shall be as defined in the franchise
agreement.
H.
In addition, if the City or any instrumentality of
the City directly or indirectly operates a system which competes with
the grantee during the term or renewal terms of the franchise, then
the grantee shall not be deemed to have waived but shall be considered
to have specifically reserved all of its rights regarding modification
of all regulatory terms and conditions of both this ordinance and
the franchise issued pursuant hereto which have or may have the effect
of granting the City a competitive advantage over the grantee, including
but not limited to those terms and conditions granting the City the
ability to regulate the grantee's rates, to regulate pricing differentials
and/or to impose fees and assessments upon the grantee, to impose
and/or enforce consumer protection standards and to inspect the grantee's
books and records, as well as any other terms and conditions of like
import and effect.
