A.
Between 210 and 30 days prior to the fourth and eighth
anniversary dates of the effective date of this chapter, the City Council
shall conduct a review and examination of this entire MCS provider chapter.
B.
In conducting such a review and examination of this MCS
provider chapter, the City Council shall consider, among other things, the
following:
(1)
Whether one or more provisions have been superseded,
clarified, or modified by federal or state law (including PSC rule or regulation);
(2)
Whether one or more provisions have been superseded,
clarified, or modified by a subsequent binding judicial decision;
(3)
Whether one or more provisions are unnecessary or ineffective
in light of emerging and evolving technologies;
(4)
Whether new or different trends relating to MCS providers
warrant or necessitate additional safeguards for customer or subscribers and/or
subscribers; and
(5)
Whether the economic and customer or subscriber forces
associated with competition have lessened the need for one or more provisions.
C.
If after such a periodic review and examination of the
MCS provider ordinance, the City Council determines that one or more provisions
of the MCS provider ordinance should be amended, repealed, revised, clarified,
or deleted, then the City Council may take whatever measures necessary (to
the extent permitted by law) in order to accomplish same. It is noted that
where warranted and the best interests of the City, the City Council may repeal
the entire MCS provider ordinance.
A.
Consistent with the Cable Act, no person shall intercept
or receive, or assist in intercepting or receiving, any communications service
offered over a multichannel system, unless specifically authorized to do so
by an MCS provider, or as may be specifically authorized by law.
B.
For the purpose of this section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for the unauthorized reception of multichannel service as referenced in Subsection A of this section.
C.
Without securing permission from an MCS provider, or
making payment to an MCS provider, then no person shall be authorized to make
any connection, whether physically, electrically, acoustically, inductively,
or otherwise, with any part of an authorized or franchised multichannel system
for the purpose of receiving or intercepting, or assisting others to receive
or intercept any cable service provided lawfully by the MCS provider.
D.
Any, and all MCS providers are encouraged to work with
the City Council in developing and implementing a plan designed to control
and eliminate the unauthorized reception of certain multichannel services
within the City.
A.
In addition to all other rights and powers vested in
and possessed by the City, the City specifically reserves the right to assess
liquidated damages for and on behalf of both the City and subscribers whose
interests have been harmed or damaged by the failure of an MCS provider to
comply with any time or performance-related requirements, or any breach of
a term or condition of a franchise, other agreement, license or permit, or
of this chapter, or for the violation or breach of any federal, state, or
local law, rule or regulation, in the event such failure has not been remedied
pursuant to procedures set forth in this chapter.
B.
Upon acceptance of a franchise agreement or other agreement,
license or permit, or the renewal of any franchise agreement or other agreement,
license or permit, a franchisee or other MCS provider shall indicate that
it clearly understands that a failure to comply with any time or and performance
related requirements, or any breach of a term or condition of such franchise,
other agreement, license or permit or of this chapter, or of any federal,
state, or local law, rule, regulation, or code as set forth any agreement
or this chapter, will result in damage to the City, and that in certain situations
it will be impractical and impracticable to determine the actual amount of
such damage in the event of the delay or nonperformance of specified obligations.
If the City elects to assess liquidated damages against the franchisee or
other MCS provider, said liquidated damages shall constitute the sole financial
remedy available to the City, and the City shall not be entitled to any other
financial or monetary damages, excepting claims based in fraud or tort, or
defense and indemnity.
C.
By acceptance of a franchise agreement or other agreement,
license or permit, absent good and just cause and the provision of evidence
of good faith efforts to comply, the failure to comply with any time and performance-related
requirement stipulated in the franchise agreement or other agreement, license
or permit, or this chapter, will result in damage to the City. Liquidated
damages shall continue to accrue, including during any appeals process, until
such time as the liquidated damages payment is received by the City, or is
otherwise waived by the City. Failure to pay liquidated damages within the
time provided shall be a material violation of this chapter, and the franchise
agreement or other agreement, license or permit, and shall be cause to proceed
against either a letter of credit or bond or other surety as provided by the
franchisee or other MCS provider. It shall also constitute cause to pursue
revocation of the franchise or other agreement, license or permit. The franchisee
or other MCS provider shall be charged, and shall pay to the City, the following
amounts in liquidated damages for the violations listed:
(1)
For failure to complete any system construction, reconstruction
or upgrade, pursuant to the franchise agreement or other agreement or permit:
$500 for each day, or part thereof, that the violation or breach continues.
(2)
For failure to provide any data, documents, reports or
information required by the franchise or other agreement, license or permit
needed to monitor compliance and administer said franchise or other agreement,
license or permit, or for failure to cooperate with the City during an application
process or system review: $100 for each day, or part thereof, the violation
occurs or continues.
(3)
For failure to test, analyze and report on the performance
of the system following a written request pursuant to this chapter or a franchise,
other agreement, license or permit: $200 for each day, or part thereof, that
such noncompliance continues.
(4)
For failure to meet the customer service requirements
of this chapter or a franchise, other agreement, license or permit: up to
$100 for each day, or part thereof, that such noncompliance continues.
(5)
For failure to comply with any consumer protection requirements
of this chapter or a franchise, other agreement, license or permit: $100 for
each day, or part thereof, that such noncompliance continues.
(6)
For failure to comply with any requirements regarding
deposits and the return of deposits as set forth in this chapter or a franchise,
other agreement, license or permit: $100 per day per incident for each day
or part thereof that such noncompliance continues.
(7)
For failure to comply with any requirements regarding
the improper or impermissible discontinuance or disconnection of a subscriber's
service as set forth in this chapter or a franchise, other agreement, license
or permit: $100 per day per incident for each day or part thereof that such
noncompliance continues.
(8)
For failure to comply with any requirements regarding
connections and disconnections as set forth in this chapter or a franchise,
other agreement, license or permit: $100 per day per incident for each day
or part thereof that such noncompliance continues.
(9)
For failure to comply with any requirements regarding
disconnection and downgrade fees as set forth in this chapter or a franchise,
other agreement, license or permit: $100 per day per incident for each day
or part thereof that such noncompliance continues.
(10)
For failure to comply with any requirements regarding
charges for repair of equipment or service disconnection as set forth in this
chapter or a franchise, other agreement, license or permit: $100 per day per
incident for each day or part thereof that such noncompliance continues.
(11)
For failure to comply with any requirements regarding
the three-day right of rescission as set forth in state law, or a franchise,
other agreement, license or permit: $500 per day per incident for each day
or part thereof that such noncompliance continues.
(12)
For failure to comply with any requirements regarding
the use and display or identification passes and badges as set forth in this
chapter or a franchise, other agreement, license or permit: $50 per day per
incident for each day or part thereof that such noncompliance continues.
(13)
For failure to comply with any requirements regarding
cleanup and proper installation as set forth in this chapter or a franchise,
other agreement, license or permit: $100 per day per incident for each day
or part thereof that such noncompliance continues.
(14)
For failure to comply with any requirements regarding
subscribers being advised in writing of specific services and procedures as
set forth in this chapter or a franchise, other agreement, license or permit:
$50 per day per incident for each day or part thereof that such noncompliance
continues.
(15)
For failure to meet any safety-related requirements of
this chapter or a franchise, other agreement, license or permit, including
fire and electrical codes: up to $500, per failure, for each day, or part
thereof, that such noncompliance continues.
(16)
For failure to pay the full and complete amount of any
money owed the City: up to $100 per day, for each day, or part thereof, that
such underpayment continues as measured from the date the original payment
was due.
(17)
For failure to comply with any other section, subsection,
or provision of this chapter, or a franchise agreement or other agreement,
license or permit: $50, for each instance of noncompliance or violation, for
each day, or part thereof, that such noncompliance continues.
D.
Notwithstanding anything in the preceding, or any other
section of this chapter, after the initial 48 hours following notification
by the City to the franchisee or other MCS provider that a violation exists,
each day that a violation continues shall constitute and be deemed a separate
violation and may be treated as a separate violation.
E.
In the event of an appeal arising out of the enforcement
of this section, or in the event of litigation arising out of a dispute regarding
the enforceability of any action taken by the City under this section, during
the course of such proceeding the franchisee or other MCS provider shall not
be excused from the prompt and timely payment of liquidated damages as set
forth in this section. Payment of liquidated damages in such an instance shall
be placed in an escrow account by the City, pending the resolution and decision
of the adjudicating entity.
F.
Notwithstanding anything in this section, or any other
section of this chapter, a franchisee or other MCS provider may not use the
payment of liquidated damages, or other fines or penalties as may permitted
and assessed, to evade or avoid compliance with this chapter or any section
of this chapter. An attempt to do so shall subject the franchisee or other
MCS provider to termination and loss of the franchise or other agreement,
license or permit or other operating authority.
A.
The City shall provide notice and opportunity to cure
for the failure to comply with a time or performance-related requirement,
or breach of a term or condition of an MCS franchise or other agreement, license
or permit, or of this chapter, or of any federal, state, or local law, rule,
regulation or code which the City deems sufficient to warrant the assessment
and imposition of liquidated damages.
B.
Notwithstanding anything to the contrary in the preceding
Subsection, or any other Subsection of this section, for situations involving
violations of safety and safety-related codes and requirements where such
are deemed to create an imminent threat or danger to lives or property within
the City, and for which the MCS provider has previously been notified of a
situation(s) involving noncompliance with the same or similar situations,
or aspects of safety and safety-related codes and requirements, the MCS provider
shall be notified, but may not be granted an opportunity to remedy or cure
prior to the imposition of liquidated damages. Rather liquidated damages may
be assessed and imposed immediately, on a per-occurrence per-day basis, until
the violation(s) is eliminated.
C.
Notice and the opportunity to cure shall be provided to the affected MCS provider in writing, and shall be sent by certified US mail, return receipt requested, to the franchisee's or other MCS provider's local place of business. The amount of time given the franchisee or other MCS provider to cure any time or performance requirement, or breach of a term or condition of a MCS provider franchise or other agreement or permit, violation of this chapter, or violation of any federal, state, or local law, rule or regulation, shall be at the discretion of the City, but in no event less than 48 hours, unless otherwise agreed to between the City and the franchisee or other MCS provider, or as set forth in Subsection B of this section. Notwithstanding the preceding, or anything else in this section or this chapter, in the event of a situation in violation of the safety-related requirements of this chapter that endangers or has the reasonable possibility of endangering the health or safety of individuals or property, the 48 hour cure period may be lessened and, in fact, a cure may be required the same day, depending upon the seriousness of the matter as a factor of the threat created to the public.
D.
The City may, in its reasonable discretion, grant extensions
of time to a franchisee or other MCS provider to cure or remedy, where extraordinary
circumstances not precipitated by the franchisee or other MCS provider warrant
an extension.
E.
Notwithstanding any notice and opportunity cure requirements
of the applicable federal or state law, the issuance of two or more notices
to cure for the same or similar time or performance related requirement, or
breach of a term or condition of a franchise or other agreement or permit,
or violation of this chapter, or violation of any federal, state, or local
law, rule, regulation or code within any twelve-consecutive-month period,
shall relieve the City of any obligation to provide further notice and opportunity
to cure for subsequent failures to meet any time or performance related requirements,
or breaches of terms or conditions of such franchise or other agreement, license
or permit, violations of this chapter, or violations of any federal, state,
or local law, rule, regulation code. Evidence of subsequent failures as set
forth in this subsection, shall be admissible as evidence in a hearing before
the City Council on the assessment of liquidated damages, provided that the
City has provided such evidence to the franchisee or other MCS provider at
least 10 days prior to the hearing and the MCS provider has an opportunity
to be heard at the hearing.
F.
A notice of intent to assess liquidated damages may be
issued concurrently with a notice to cure. If a notice of intent to assess
liquidated damages is issued concurrently with a notice to cure, liquidated
damages, if assessed, will accrue commencing with the expiration of the time
allowed for an opportunity to cure as set forth in the Notice. The notice
of intent to assess liquidated damages shall state the reason for the assessment
and imposition, and shall inform the franchisee or other MCS provider that
liquidated damages will be assessed from the date of the notice, or the end
of the time allowed for an opportunity to cure, whichever is later.
G.
If the franchisee or other MCS provider desires to appeal
the City's assessment of liquidated damages, it must file a written notice
of appeal with the City Clerk/Treasurer, delivered by certified US mail, within
10 days of the receipt of the notice of intent to assess liquidated damages.
The City Clerk/Treasurer shall then place the issue of the assessment of liquidated
damages before the City Council.
H.
The City shall then have served upon the affected MCS
provider a written notice of the date, time and place of the meeting, at least
30 days prior to the day of the meeting of the City Council at which the matter
will be heard.
I.
Public notice shall be given of the meeting and the issue
that is to be considered by the City Council. If the franchisee or other MCS
provider fails to appeal the City's assessment of liquidated damages within
the time required by this section, the City's decision to assess liquidated
damages shall be final.
J.
The City Council shall, at the date time and place designated
for the hearing, hear and consider issues from the City and the MCS provider
and make a determination regarding the alleged violation of this chapter or
any franchise, other agreement, license or permit.
K.
The City Council shall hear and consider the matter,
including hearing any person interested in the matter wishing to be heard,
and review and consider any relevant evidence. After affording the MCS provider
required rights of due process to be heard, to present relevant evidence and
witnesses and to question any witnesses, the City Council shall determine
whether or not there was committed a breach or violation of a time or performance
related requirement, or a breach of a term or condition of the MCS provider's
franchise or other agreement, license or permit, or of this chapter, or of
any federal, state, or local law, rule, regulation or code.
L.
The franchisee or other MCS provider may, at its own
expense, make a transcript of any such hearing, or share the costs of obtaining
a transcript of such hearing equally with the City if the City has a transcript
made.
M.
Within 30 days following the completion and close of
the hearing, the City Council shall issue a written decision as regards to
whether any failure to comply with any time or performance related requirement,
or breach of a term or condition of the franchise or other agreement, license
or permit, or of this chapter, or of any federal, state, or local law, rule,
regulation or code occurred, based upon the record of the proceeding, stating
with particularity the reasons for such decision. A copy of the Council's
decision shall be provided to the franchisee or other MCS provider
N.
Should the City Council find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the franchisee or other MCS provider remedied the failure prior to the end of the period allowed for cure, or that the franchisee or other MCS provider instituted substantial actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that liquidated damages are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the City Council, the proceedings shall be terminated and no penalty shall be imposed.
O.
The City Council shall be required to base its decision
on a preponderance of the evidence from the record established during the
City Council's hearing. If the City Council determines that any time or performance
related requirement, or breach of a term or condition of the franchise or
other agreement, license or permit, or of this chapter, or of any federal,
state, or local law, rule, regulation or code was the fault of the MCS provider,
and was within its control, subsequent to the required notice and opportunity
to cure and due process requirements of this chapter, the City Council may
affirm the assessment and imposition of liquidated damages. The City Council's
decision to affirm the City's assessment of liquidated damages shall be final
and no other remedies, administrative or otherwise, nor any procedures for
such, are provided under this chapter.
P.
Prior to imposing any penalty or sanction against the MCS provider for failure to perform any of its obligations under this chapter or its franchise agreement or other agreement or permit, other than liquidated damages or termination, the City shall provide the franchisee or other MCS provider notice and opportunity to cure such failure in accordance with the following procedures in Subsection Q of this section.
Q.
The City shall provide the franchisee or other MCS provider with written notice specifying the nature of the failure, breach or violation. The franchisee or other MCS provider shall have a period of 48 hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of situations addressed in Subsection B of this section.
R.
In the event the City concludes that the franchisee or
other MCS provider has failed to comply with any of its obligations under
this chapter or the franchise agreement or other agreement, license, or permit,
and further, that the MCS provider has not remedied such failure, breach or
violation within the period allowed after receiving written notice of such,
the City may impose whatever penalties or other sanctions are provided for
under this chapter or the franchisee's or other MCS provider's franchise agreement
or other agreement or permit.
A.
The City is hereby granted the authority to do all things
necessary and permissible to supervise, inspect, and regulate the construction,
operation, repair and maintenance of multichannel systems operating within
the City, whether franchised or otherwise, that are permitted to and do operate
under this chapter in whole or in part, and to implement procedures for the
filing and resolution of complaints.
B.
The responsibility for such supervision, inspection and
regulation is retained by the City Council which is empowered, among other
things, to adjust, settle or compromise any controversy arising from the operations
of any franchisee or other MCS provider, either on behalf of the City or any
subscriber, in accordance with the best interests of the public and the City;
provided, however, that any person aggrieved by a decision of the City may
appeal the matter for a hearing and determination in accordance with this
chapter.
C.
The City Council reserves the right, at all times, on behalf
of the City or a subscriber, to accept, reject or change any decision of the
City Council, and may adjust, settle or impose a compromise regarding any
controversy arising from the operation of a franchise or other MCS provider
that is subject to this chapter in whole or in part, or from any provision
of this chapter.
D.
If any advisory committee is established by the City, a franchisee
or other MCS provider is encouraged to participate in advisory committee meetings
relating to MCS provider operations.
