A. 
The City Council (or Council) is hereby designated the entity of the City that is responsible for the continuing administration of this chapter, and matters related to multichannel service including cable service, cable systems, and cable operators.
B. 
Unless prohibited by federal, state (including any applicable provision of the PSC) or local law the City Council may further delegate its powers and authority to a duly authorized representative with respect to administering this chapter or an applicable franchise, other agreement, license or permit authorizing the construction, operation and maintenance of a multichannel system, as is permissible under applicable state and federal law.
C. 
Moreover, unless prohibited by federal, state, or local law the City Council may create an appointed or elected advisory council, commission, or committee which is designed to handle issues concerning multichannel service and multichannel service providers. If such a board, commission, or committee is created, then a separate resolution, ordinance, or document shall be adopted wherein the precise powers and authorities of the board, commission, or committee shall be outlined.
D. 
However, the City Council may never delegate its initial or renewal franchising, licensing or permitting power, or power of revocation of such, to another person or representative (including any advisory council, commission, or committee). Moreover, while the City Council may use an outside consultant to review any rates that are subject to the City's review under the Cable Act, the City Council nonetheless may not delegate its ultimate rate-making power to another person or representative (including an advisory council, commission, or committee).
Multichannel service (MCS) provider franchise agreements, or other MCS agreements, licenses or permits are subject to and shall be governed by the terms, conditions and provisions of this chapter and any amendments thereto. Also subject to all terms, conditions and provisions of this chapter and any amendments thereto are providers of multichannel service not otherwise subject to local franchising authority, but who are not exempted from compliance with applicable local regulatory ordinances or laws by federal or state law, rule or regulation. In the event of any conflict or ambiguity between this chapter and any amendments thereto, and any franchise agreement or other agreement, license or permit subject to this chapter in whole or in part, or any amendments thereto, this chapter and any amendments thereto shall control, unless preempted by federal or state law, rule or regulation.
A. 
With respect to provisions classified as "consumer protection" and "customer service," and specifically those sections that are contained within this chapter, and that follow this section, that are denoted by an asterisk (*) in front of the section heading,[1] such sections and provisions shall specifically be applicable to any and all MCS providers operating in the City, unless:
(1) 
The MCS provider is exempted from the ordinance, or any applicable provision thereof, or
(2) 
The MCS provider is requests and is granted relief from any applicable provision of the ordinance so designated, or
(3) 
The applicability of the provision is preempted by the force of a superseding state or federal law, rule or regulation.
[1]
Editor's Note: No such designations were indicated in the version of this ordinance included as part of the 1997 Municipal Code.
B. 
Moreover, such MCS provider that is providing service as of the effective date of this chapter, shall be expected to comply with, and abide by, applicable consumer protection and customer or subscriber service provisions no later than 300 days after the effective date of this chapter, or upon the grant of a new or renewed franchise, other agreement, license or permit, whichever occurs sooner.
C. 
All other provisions contained within this chapter shall be applicable to and of full force and effect 30 days after the date of adoption of this chapter with respect to any MCS provider that is providing service as of the effective date of this chapter, unless:
(1) 
The MCS provider is exempted from the ordinance (or any applicable provision), or
(2) 
The MCS provider is requests and is granted relief from any applicable provision of the ordinance, or
(3) 
The applicability of the provision is preempted by the force of a superseding federal or state law, rule or regulation in place at the time.
D. 
Subsections A and B of this section are not intended to repeal, and do not have the effect of repealing, any current franchise, other agreement, license or permit that presently exists between the City and a franchised MCS provider.
E. 
As a result of Subsection C of this section, the provisions of this chapter shall have no effect on an existing franchise, other agreement, license or permit with respect to requiring additional substantial capital investment, until the expiration of such existing franchise, other agreement, license or permit, or until one of the following occurs:
(1) 
Prior to the expiration date of a franchise, other agreement, license or permit, the City Council and the affected franchised MCS provider either execute an amended franchise, other agreement, license or permit; or
(2) 
Both parties agree to a specific date for the expiration of said existing franchise, other agreement, license or permit, which in fact is prior to the present franchise, other agreement, license or permit expiration date; or
(3) 
A court of competent jurisdiction orders that an existing MCS provider become subject to all, or any part or provision, of this chapter.
F. 
Notwithstanding anything to the contrary in this section, to assure the protection of the health and safety of the public, any and all MCS providers shall be subject to, and shall be required to comply with, all safety and safety-related codes of the City and this chapter, at all times, regardless of the status of any current franchise, agreement, license or permit. This shall specifically include:
(1) 
The National Electrical Code;
(2) 
The National Electrical Safety Code; and
(3) 
Any other applicable safety and safety-related codes of the City or the state
A. 
MCS providers who are exempted from complying with the provisions of this chapter are as follows:
(1) 
An MCS provider who is exempted from this chapter as a result of federal or state law, including a specific rule or regulation of the FCC or the PSC;
(2) 
An MCS provider who is exempted from this chapter as a result of an applicable FCC ruling; or
(3) 
An MCS provider who is exempted from this chapter as a result of an applicable judicial ruling, from which all subsequent permissible appeals have been exhausted or concluded.
B. 
It is expressly understood that an exempted MCS provider remains exempted only as long as it meets one or more of the criteria of this particular section.
C. 
If exempted in accordance with any of the preceding, a qualified MCS provider is exempt only from this chapter and not any other locally enforceable ordinance, law, code or regulation. Consequently, such an exempted MCS provider shall abide by, and comply with, any other applicable City, state, or federal laws, rules and regulations, including any applicable federal, or state consumer protection, or customer or subscriber service laws, rules and regulations.
D. 
Notwithstanding anything to the contrary in this chapter, any MCS provider currently holding a franchise at the date of the effective date of this chapter shall be exempted until the expiration date of its current franchise, from complying with the provisions of this chapter, except for the provisions set forth below:
§ 309-26
Applicability of state consumer sales practices laws
§ 309-31
Preferential or discriminatory practices prohibited
§ 309-37A
Specific state-imposed rules for MCS providers classified as cable operators; specifically Subsection A
§ 309-38
Protection of subscriber privacy
§ 309-42
Construction schedule and construction-related requirements; specifically Subsections A, B, E and F
§ 309-43
Quality construction required
§ 309-44
Use of streets and public ways
§ 309-51
Safety requirements
§ 309-54
Construction, fire and safety standards
A. 
Any MCS provider affected by this chapter may file a written petition, at any time, with the City Council seeking relief from one or more provisions of this chapter. An MCS provider may specifically request exemption or relief from, or delay in implementation (but as to the petitioning MCS provider only), of one or more provisions of this chapter. Also, the MCS provider may request that a specific provision of the ordinance apply to such MCS provider for a specified or limited length of time or duration. The petition shall set forth the relief requested and the basis thereof with such supporting information and material as may be applicable and deemed necessary by the City Council.
B. 
Any request submitted in accordance with this section that does not contain a clearly articulated explanation or rationale for each item or matter being requested, individually, shall be deemed incomplete and returned to the petitioner without action.
C. 
In order to receive relief from one or more of the provisions of this chapter, an MCS provider must satisfactorily demonstrate to the City Council that at least one of the following facts exist:
(1) 
The provision and/or requirement is expressly prohibited by federal law, the FCC, or state law, rule or regulation, including any specific rule or regulation of the PSC; or
(2) 
Where applicable, that the provision in question materially affects, and is in substantial conflict with an expressed right that is specifically noted in an existing franchise, other agreement, license or permit (but only for the term of the existing franchise, other agreement, license or permit). This provision covers situations where an MCS provider classified as a cable operator seeks, and is granted, modification of an existing franchise, other agreement, license or permit under Section 625 of the Cable Act (codified at 47 U.S.C. § 545); or
(3) 
That compliance with a particular provision and/or requirement will be commercially impracticable for an MCS provider; or
(4) 
That one or more time frames listed in this chapter are either impossible to meet, or are impracticable to meet; or
(5) 
That the MCS provider has its own policy which the City Council deems comparable to, or on excess of, any provision and/or requirement from which the MCS provider seeks relief; or
(6) 
That the health, safety, and welfare interests of the City and the public otherwise warrant the granting of such relief.
D. 
The City Council shall be the sole determiner of whether an MCS policy, is comparable to, or exceeds, a similar provision in this chapter.
E. 
As an alternative to seeking an exemption, or requesting relief, an MCS provider may petition for clarification concerning the precise intent and effect that one or more provisions or sections of this chapter have on the petitioning MCS provider.
F. 
In those instances where the City Council grants an exemption or relief to a franchised MCS provider, or deems a franchised MCS provider's operational policy to be comparable to an ordinance provision, then the franchise, other agreement, license or permit (initial, existing, or renewal) shall be amended within 60 days to reflect the exact extent of such exemption and/or relief.
G. 
It should be specifically noted that the benefit of such exemption, relief, clarification, or comparable policy extends only to the MCS provider granted such exemption, relief, clarification, or comparable policy. Consequently, in the case of a transfer, assignment or sale of the system, the proposed transferee, assignee, or buyer may, if required by the City Council, be required to petition separately for such relief, clarification, exemption, or comparable policy substitution. For purposes of clarification, this shall mean that unlike certain other amendments to the franchise, other agreement, license or permit as may be required by law, there shall be no automatic transfer of any exemption, relief, clarification or comparable policy to a transferee of a franchise, other agreement, license or permit, or a new owner of a multichannel system.
An MCS provider shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the City Council on any one or more occasions to seek, or insist upon, prompt compliance with such requirements or provisions.
A. 
Any MCS provider, its assignee, or transferee shall be subject to, and expected to comply with, all applicable ordinances and/or resolutions now or hereafter adopted and in effect within the City, including this chapter, to the extent that said MCS provider has not received an exemption or relief from said ordinance(s) and/or resolution(s).
B. 
Any MCS provider, and its assignee or transferee, shall be subject to, and expected to comply with, all federal and state laws, and with all rules and regulations issued by all applicable regulatory agencies (including where applicable, the FCC and the PSC now or hereafter in existence. However, if the City amends this chapter, and the amendment of the ordinance would have the effect of either unilaterally requiring the investment of substantial new capital for equipment by the MCS provider, or unilaterally changing the process for default and/or revocation of an MCS provider's franchise, other agreement, license or permit, then such amendment of this chapter shall have no effect on the affected MCS provider, until the expiration of the franchise agreement, other agreement, license or permit.
C. 
Any MCS provider, its assignee, or transferee shall be subject to all lawful exercise of the City's police power, without limitation of any kind, other than as may be limited by applicable state or federal law.
D. 
With respect to future ordinances and/or resolutions noted in this section, nothing contained herein shall prevent an MCS provider from exercising any, and all, of its administrative and legal rights in order to challenge the constitutionality, applicability, and enforceability of said future ordinances and/or resolutions.
A. 
Except as provided in Subsection B of this section, any prior resolution, ordinance, or local law, which in part, or in whole, is directly inconsistent with this chapter is hereby repealed to the extent of the inconsistency.
B. 
Subsection A of this section is not intended to repeal, and does not have the effect of repealing, any current franchising ordinance or franchise, other agreement, license or permit that presently exists between the City and an MCS provider.
A. 
In any case of an actual inconsistency between any provision or section of this chapter, and any provision or section of a federal or state rule, regulation, or law, then the federal or state rule, regulation, or law (including any specific and applicable rule or regulation of the PSC) shall not only supersede the effect of the ordinance, but also control in any local application, unless such federal or state rule, regulation or law (including any specific and applicable rule or regulation of the PSC) does not preempt, supersede, or make invalid the inconsistency.
B. 
Subsection A of this section specifically includes any situation wherein an applicable federal or state judicial decision creates an actual inconsistency with any provision or section of this chapter. In such a situation, the federal or state judicial decision shall not only supersede the effect of the ordinance, but also control in any local application, unless such federal or state judicial decision does not preempt, supersede, or make invalid the inconsistency.
A. 
Where there is a conflict (actual or apparent) between this chapter and a subsequent franchise, other agreement, license or permit, this chapter shall control and prevail, unless judicially determined invalid, unenforceable, or unconstitutional by a court of competent jurisdiction, or unless the provisions of Subsection B of this section apply to the MCS provider and its franchise, other agreement, license or permit.
B. 
Where a franchised MCS provider receives an exemption, relief or clarification from one or more provisions or sections of this chapter, or has one or more of its policies deemed comparable to a provision contained in this chapter, the franchise, other agreement, license or permit shall specifically note such exemption, relief, clarification, or comparable policy. As a result, to the extent that such an exemption, relief, clarification, or comparable policy is both contained in a franchise, other agreement, license or permit, and is inconsistent with a provision contained in this chapter, then the specifically noted exemption, relief, clarification, or comparable policy language contained in the franchise, other agreement, license or permit shall control, but only to the extent noted in the franchise, other agreement, license or permit.
C. 
Notwithstanding Subsection B of this section, any grant of exemption, relief, clarification, or comparable policy shall be for the sole benefit of the owner and operator of the multichannel system as of the date of the grant of exemption, relief, clarification, or comparable policy. Specifically, such grant shall not be automatically transferred along with any approved transfer or change in ownership or change in control of a franchise, other agreement, license or permit. Any transfer of exemption, relief, clarification, or comparable policy shall always require a separate act of approval by City Council.
A. 
To the extent permitted by state and local law, including applicable provisions of the PSC regulations, the City Council reserves the authority to institute a penalties schedule for violations of this chapter. Where appropriate and/or applicable, violations of this chapter shall be handled in the manner prescribed by either local or state law, including any applicable provision of the PSC.
B. 
In instances where liquidated damages are applicable for a breach or violation of this chapter or a franchise, other agreement, license or permit, as set forth in § 309-71, Liquidated damages, then such assessed charges or liquidated damages shall operate as a separate and independent remedy for the City.
C. 
Notwithstanding the other provisions in this section, an MCS provider shall not be subject to such provisions in instances of force majeure (as outlined elsewhere in this chapter), and/or for a "technical" violation of the ordinance, or where applicable, a "technical" breach of a franchise, other agreement, license or permit (as outlined in this chapter).
D. 
Notwithstanding the other provisions in this section, a franchised MCS provider shall be subject to possible default and/or revocation for cause as set forth in this chapter.
Notwithstanding the provisions contained in § 309-15 of this chapter, an MCS provider shall not be subject to penalties, fines, forfeitures or (where applicable) revocation of a franchise, other agreement, license or permit for a so-called "technical" violation of this chapter or (where applicable) a "technical" breach of a franchise, other agreement, license or permit. For purposes of this chapter, "technical" violations or breaches include the following:
A. 
Instances, or in matters, where a violation of this chapter or, where applicable, a franchise, other agreement, license or permit by an MCS provider was a good faith error that resulted in no or diminimus negative impact on the residents or subscribers within the City or on the City, itself; or
B. 
Instances or circumstances that existed and were reasonably beyond the control of an MCS provider, including force majeure situations, and prevented an MCS provider from complying with this chapter, or where applicable the franchise, other agreement, license or permit.
A. 
Notwithstanding the other provisions of this chapter, an MCS provider shall not be held in violation, integral or material breach, default or noncompliance of this chapter or a franchise, other agreement, license or permit, nor suffer any enforcement or penalty relating thereto, including where applicable, termination, cancellation or revocation of a franchise, other agreement, license or permit and/or license, where such violation, breach, default or noncompliance occurred, and/or was caused by a natural disaster such as an earthquake, flood, tidal wave, hurricane, or similar devastating act of nature, or any other event that is reasonably beyond an MCS provider's ability to anticipate and control that is of a devastating nature or effect. Force majeure also covers strikes, riots, wars, and armed insurrections, as well as work delays caused by waiting for utility providers to service or monitor their own utility poles on which an MCS provider's cable and/or equipment is attached.
B. 
Notwithstanding Subsection A of this section, and even in the case of a force majeure situation, a customer or subscriber may be entitled to a refund or credit if the customer or subscriber sustains a multichannel service outage for a period of time that is in excess of those permitted under the provisions of this chapter.
A. 
Both the City Council and each MCS provider shall provide the other party with the name and address of the contact designated to receive notices, filings, reports, records, documents, and other correspondence. All notices shall be delivered to each party's contact by certified mail, return receipt requested, personal service with a signed receipt of delivery, or overnight with receipt verification. All other filings, reports, records, documents, and other correspondence may be delivered by any permissible means including, but not limited to: facsimile transmission ("faxing"); personal service; overnight mail or package delivery, so long as proof of delivery is obtained. The delivery of all notices, reports, records, and other correspondence shall be deemed to have occurred at the time of receipt, unless otherwise designated by state law.
B. 
If the MCS provider is required to maintain a franchise, other agreement, license or permit, then the designation of such contact person for notice and notification purposes, may be contained within a franchise, other agreement, license or permit.