[HISTORY:[1] Adopted by the Mayor and City Council of the City of Monroe 3-3-1986 by Ord. No.
85-005. Amendments noted where applicable.]
GENERAL REFERENCES
General penalty — See § 1-27.
Telecommunications — See Ch. 651.
Zoning — See Ch. 720.
STATUTORY REFERENCES
Construction and maintenance of facilities — See
MCLA § 247.183 et seq.
Television and radio generally — See
MCLA § 750.507 et seq.
Cables improperly located; insurance — See
MCLA § 500.3123.
[1]
Editor's Note: Ord. No. 93-013, passed 9-27-1993,
adopted regulations consistent with the Communications Act of 1934,
as amended, and FCC Rules, with respect to basic cable service rate
regulation, and prescribed procedures to provide a reasonable opportunity
for consideration of the views of interested parties in connection
with basic cable service rate regulation by the City. Copies of such
ordinance and of such regulations and rules may be obtained, at cost,
from the Clerk/Treasurer.
A.
The City finds that the development of cable television
and communications (CATV) systems has the potential of having great
benefit and impact upon the people of Monroe. 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 powers which
should be vested in the City or such persons as the City shall designate.
It is the intent of this chapter and subsequent franchise agreements
and amendments to provide for the means to attain the best possible
CATV system to meet the public interest and public purpose.
B.
Further, it is recognized that CATV systems have the
capacity not only to provide entertainment and information services
to the City's residents, but also to provide a variety of broadband
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.
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 systems should be capable of accommodating
both the present and reasonably foreseeable future communications
needs of the City.
(3)
The system should be improved during the franchise
term as provided herein, to meet improving standards, technology and
the needs of the public. Any facilities added for the operation of
this system shall be integrated and shall conform in standards to
the existing facilities.
For the purpose of this chapter, the following
terms, phrases, words and their derivations shall have the meanings
given herein. 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 be given their common and ordinary
meaning.
All subscriber services provided by the franchisee covered
by the regular monthly charge paid by all subscribers, and shall include
public, education and government channels.
Also referred to as "cable television system," "CATV system"
or "broadband communications network." A system of antennas, cables,
amplifiers, towers, microwave links, a cablecasting studio and any
other conductors, converters, equipment or facilities designed and
constructed for the primary purpose of distributing video programming
to home subscribers and for the secondary purpose of producing, receiving,
amplifying, storing, processing or distributing audio, video, digital
or other forms of electronic or electrical signals sold or distributed
to subscribers. Such definition shall not include any similar facility
that serves only the residents of one or more apartments or multifamily
dwellings or condominiums under common ownership, control or management,
nor other closed circuit systems for industrial, commercial or similar
use to which the general public may not subscribe, so long as the
public streets or rights-of-way are not utilized in the provision
of such service or interconnection of such facilities.
A six-megahertz (MHz) frequency band, which is capable of
carrying either one standard video signal, a number of audio, digital
or other nonvideo signals or some combination of such signals.
The occurrence of an unforeseen supervening circumstance,
the nonoccurrence of which was a basic assumption on which the contract
was made, making performance difficult.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and any channel selector which permits a subscriber
to view all signals delivered at designated converter dial locations
at the set or by remote control.
The Mayor and Council, wherein the Mayor does not possess
veto power.
The nonexclusive rights authorized by this chapter and granted
through a franchise agreement approved by resolution of Council to
construct and operate a cable communications system along the public
ways within all or a specified area in the City.
A franchise contract entered into voluntarily by a franchisee
and the City, containing the specific provisions of the franchise
granted.
The sum of all revenue received by the franchisee from subscribers
within the City for the installation and delivery of services, except
any taxes on or for services furnished by the franchisee imposed directly
on any subscriber by the State of Michigan, the City of Monroe or
another governmental unit, and collected by the franchisee on behalf
of such entity. However, the term "taxes" shall not include a franchise
fee or property or income taxes placed upon the franchisee.
Channels dedicated to serving nonprofit organizations. Services
may include, but are not limited to, one-way video, two-way video
and audio or digital signals among institutions to residential subscribers.
Includes all definitions relating to technical standards
and shall mean the same as they are defined in the Code of Federal
Regulations.
Shall apply wherever notice is required, unless otherwise
provided. "Notice" means written notice and such notice shall be certified
and postmarked not less than five business days prior to that day
in which the party giving notice shall commence any action which requires
notice. All notices from the franchisee to the City shall be to the
Clerk/Treasurer and the City Attorney. The franchisee shall maintain
with the City, throughout the term of the franchise, an address for
service of notices by mail. The franchisee shall also maintain with
the City a local office and telephone number for the conduct of matters
related to this franchise during normal business hours. The franchisee
shall be required to advise the City of such address and telephone
number and any change thereof.
The total number of subscribers receiving service divided
by the number of potential subscribers.
An individual, partnership, association, organization, corporation
or any lawful successor transferee of said individual, partnership,
association, organization or corporation.
Programming or services for which an additional charge is
made beyond the charge for basic subscriber services, including, but
not limited to, movies, concerts, variety acts, sporting events, pay-per-view
programs, interactive services and any other service utilizing any
facility or equipment of a cable television system operating pursuant
to a franchise granted under this chapter.
Any person or entity who or which produces or otherwise provides
program material or information for transmission by video, audio,
digital or other signals, either live or from recorded tapes or other
storage media, to users or subscribers by means of the cable communications
system.
Any channel designated or dedicated for use by the general
public or noncommercial organizations for public, educational or governmental
purposes.
Includes easements, streets, sidewalks, highways, rights-of-way
and any other publicly owned property, including air space above and
the area below the surface of such property.
Any person lawfully receiving and paying for the cable communications
service (or a portion thereof) provided by the franchisee.
The cable communications system constructed for use within
the City, including, without limitation, the headend, antenna, cables,
wires, lines, towers, amplifiers, converters and health and property
security systems, equipment or facilities, located within the corporate
limits of the City and designed, constructed or wired for the purpose
of producing, receiving, amplifying and distributing by coaxial cable,
fiber optics, microwave or other means, audio and visual radio, television
and electronic signals to and from subscribers in the City, and any
other equipment or facilities located within the corporate limits
of the City intended for the use of the system; provided, however,
that such system facility excludes buildings, contracts, facilities
and equipment where the primary use is for providing service to other
system facilities located outside the City limits.
A person utilizing a channel or equipment and facilities
for the purpose of production and/or transmission of material, as
contrasted with receipt thereof in a subscriber capacity.
The remaining portion of the year in which the franchise
is granted. Thereafter, "year" means a full calendar year.
A.
Regulatory authority. The City shall exercise appropriate
regulatory authority under the provisions of this chapter and applicable
law. This authority shall be vested in Council and administered through
the City's Cable Television Committee or other appointed agency.
B.
Cable Television Committee. The City may provide administration
and enforcement of the provisions of any franchise granted pursuant
to this chapter by delegating the responsibility to the Cable Television
Committee or any other appropriate body or officer for the conduct
of the City's responsibilities relating to cable communications.
(1)
Bylaws. The Committee shall operate and administer
within the bounds of the bylaws that the Committee adopts pursuant
to this chapter.
(2)
Responsibilities. The responsibilities of the Committee
shall include, but not be limited to, the following:
(a)
Monitor and advise the Mayor and Council of
the franchisee's compliance or noncompliance with this chapter, franchise
agreements, contracts or other ordinances relative to this chapter.
(b)
Serve as the advisory body for the public, government
and educational access channels of cable television and any institutional
networks that may be developed.
(c)
Require the franchisee to submit reports, records
and test data, as provided in this chapter.
C.
Performance evaluation. The franchisee shall, if requested
by Council, participate in a public performance evaluation session
to be held on the annual date of the franchise.
[Amended 2-20-2001 by Ord. No. 01-002]
A.
Franchise required. No cable communications system
shall be allowed to occupy or use the streets of the City or be allowed
to operate without a franchise.
B.
Authority of Council. City Council is authorized and
empowered to grant a nonexclusive and revocable franchise to a qualified
applicant, authorizing the franchisee to operate a cable communications
system in the City, if it is determined to be in the public interest.
The franchise shall be granted by ordinance passed by Council and
accepted by the franchisee, and it shall thereupon become a contract
between the City and the franchisee.
(1)
Nonexclusivity. Any franchise granted hereunder shall
be nonexclusive, but if more than one franchise is in effect at the
same time, the terms and provisions of all such franchises shall be
substantially the same, and all such franchises shall expire on the
same day.
(2)
Revocation.
(a)
Grounds. The City reserves the right to revoke
any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the following circumstances, each
of which shall represent a default and breach under this chapter and
the franchise grant:
[1]
The franchisee fails to comply with material
provisions of this chapter, its franchise agreement and other written
contracts that the franchisee enters into with the City or the access
committee relating to the operation of the cable system and service
delivery.
[2]
The franchisee violates any order or ruling
relative to this chapter or the FCC or a successor governmental entity
or court having jurisdiction over the franchise.
[3]
The franchisee fails to operate the cable system
for any reason within the control of the franchisee, excluding reasonable
repair and maintenance shutdowns.
[4]
Any intentional acts to defraud or deceive the
City or the franchisee's subscribers.
(b)
Procedure.
[1]
Notice required. Before commencing action against
a franchisee for revocation, Council shall give the franchisee written
notice:
[2]
Proceedings. If the franchisee fails to take
corrective action within the time allocated, or fails to pursue such
action to timely completion, the City shall use the following procedures
to determine whether revocation is warranted:
[a]
At the request of the franchisee,
the Mayor and Council shall hold a full public hearing at which the
City shall present any evidence in support of the grounds for revocation.
The franchisee shall be provided 10 days' written notice prior to
the hearing, which notice shall include:
[i]
The time and place of the hearing;
[ii]
The circumstances and conditions
which are grounds for revocation;
[iii]
A summary of the evidence upon
which the City relies to support its claims; and
[iv]
Notice that the franchisee shall
provide the City, within five days prior to the hearing, a summary
of its evidence to refute the charges and circumstances.
[b]
At the hearing, the franchisee
and the City shall have an opportunity to be heard, to be represented
by counsel to question any witnesses presented by the City and/or
the franchisee and to present evidence in support of its position.
[c]
Interested citizens shall have
an opportunity to be heard.
[d]
If, after any required hearing,
the City Council determines that an instance of default has occurred,
it may:
[i]
Take no action;
[ii]
Pass a resolution, by a vote of
two-thirds of the members present and voting, terminating the franchise;
provided, however, that prior to such passage, the Council shall issue
a written statement setting forth its findings of default; or
[iii]
Pursue such other remedies or
take such other action available under applicable law.
[e]
Any decision or determination by
the Council may be subjected to judicial review in an appropriate
court of competent jurisdiction.
C.
Disposition of facilities.
(1)
Generally. In the event that a franchise expires,
is revoked or is otherwise terminated, or in the event that such system
or property has been installed in any public place without complying
with the requirements of its franchise, the franchisee shall promptly
remove all such property and poles of such system within such time
as is reasonably allowed by the City. In the event of any such removal,
the franchisee shall promptly restore the area from which such property
has been removed to a condition the same as or better than that which
existed prior to the installation of the franchisee's equipment.
(2)
Abandonment in place. Any property of the franchisee
to be abandoned in place shall be abandoned upon approval of the City
and in such manner as the City shall prescribe. Upon permanent abandonment
of the property of the franchisee in place, the franchisee shall submit
to the City an instrument to be approved by the City transferring
to the City the ownership of such property.
D.
Governing laws. Any franchise granted hereunder shall
be consistent with the City Charter and in conformity with all applicable
City, state and federal laws, rules and regulations and judicial authority.
In the event of a conflict between the franchise agreement and this
chapter, the franchise agreement shall prevail.
E.
Franchise fee. Any franchise granted hereunder shall require the franchisee to pay annually to the City, during the term of the franchise, a franchise fee in an amount equal to 5% of the gross annual revenues as defined in this chapter. Such annual franchise fee shall be paid in two installments. Within 30 days of the close of the first six months of the fiscal period during which this chapter is in force, the franchisee shall pay its estimated franchise fee for the six-month period based upon the franchisee's reasonable estimate of gross annual revenues for the six-month period. Any adjustments required shall be made at the end of the fiscal period pursuant to Subsection E(1) hereof. As part of its five-percent fee, the franchisee shall pay an amount equal to 2% of the gross annual revenues, or such other portion as the City may designate, to the City, to be deposited in the Cable Communication Programming Fund. This fund shall be used for the encouragement, development and production of access programming in the community and shall be administered by the City or its designated agents. The portion of the franchisee fee allocated to the fund may be altered from time to time by Council.
(1)
Report required. The franchisee shall file with the
City, within 30 days after the expiration of the fiscal period during
which this chapter is in force, a statement by an appropriate corporate
officer of the franchisee or a certified public accountant showing,
in appropriate detail, the gross annual revenues, as defined herein,
of the franchisee during the preceding calendar year. It shall be
the duty of the franchisee to pay to the City, within 15 days after
the time for filing such statements, any unpaid balance for the calendar
year covered by such statement.
(2)
Right to inspect. The City shall have the right of
reasonable inspection of the franchisee's record of gross annual revenues,
as defined herein, for a period of two years after the filing of the
required report. However, where there is an indication of fraud, the
period shall be six years.
(3)
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 under this chapter or for the performance of any
other obligation of the franchisee.
(4)
Failure to make required payment. In the event that
any franchise payment or recomputed amount is not made on or before
the date specified, the franchisee shall pay an interest charge of
7% per annum, computed from the due date.
(5)
Reimbursement of overpayment. The franchisee shall
have the right to reimbursement upon discovery of a franchisee overpayment.
(6)
Maintenance of franchise fee. In the event that it
is determined that any governmental entity lacks authority to impose
the five-percent franchise fee, the City shall be made whole through
renegotiation as to an amount owed to the City by the franchisee for
the operation of its system and the use of valuable public property,
as long as the resulting payments are not illegal.
F.
Franchise area. The franchise agreement shall specify
and define that portion of the City for which the franchise is granted.
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.
G.
Use of public streets and ways.
(1)
Generally. Any franchisee shall have the right to
use the public property, places, streets and areas, as defined in
this chapter, for the construction, maintenance and operation of its
cable communications system.
(2)
Underground and aboveground installations. 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
franchisee 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 franchisee shall likewise
place its services underground. The franchisee is subject to the same
conditions, restrictions and benefits as the electric and telephone
utilities.
H.
Duration and acceptance of franchise. The franchise
agreement and the rights, privileges and authority granted thereunder
shall take effect and be in force from and after its approval by the
Mayor and Council and shall continue in force and effect for a term
of 15 years.
(1)
The franchisee shall expressly acknowledge that, upon
its acceptance of the franchise, it did so relying upon its own investigation
and understanding of the power and authority of the City in connection
with the system, this chapter and the franchise agreement. Each of
the parties acknowledges by acceptance that it has carefully read
the terms and conditions of the franchise.
(2)
Each of the parties acknowledges that it has not been
induced to enter into the franchise by any understanding or promise
or other statement not expressed herein, 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.
(3)
If any provision, term or condition of the franchise
results in commercial impracticability in adhering to such provision,
term or condition, the franchisee may request modification of the
franchise. The Cable Television Committee or such other committee
designated by the Mayor and Council shall hold a hearing at which
the franchisee shall present evidence in support of the commercial
impracticability and necessity of modification. The committee so designated
shall make a recommendation to the Mayor and Council. The franchisee
may appeal the decision of the committee so designated to the Mayor
and Council, which shall elect to modify the franchise or deny the
request.
(a)
The franchisee must serve notice of a request
to modify, 30 days prior to the date sought, upon the committee so
designated and the Mayor and Council.
(b)
This review process is applicable to all provisions,
terms and conditions of this chapter, the franchise agreement and
other contracts, unless a procedure therefor is otherwise provided.
I.
Renewal. In consideration of the possibility of renewal
of a franchise, the City may elect a procedure for renewal. The City,
should it decide to renew, may, by written notice to the franchisee
at least 39 months prior to the expiration of the franchise, either
elect, as a procedure, the procedure laid out in the Cable Communications
Policy Act of 1984, as amended, or elect to negotiate the renewal
of the franchise independently of such Act in a manner agreed upon
by the City and the franchisee. In the absence of an election, it
shall be presumed that renewal procedures shall be governed by the
Act or any subsequent federal and/or state legislation. If the parties
agree to negotiate the renewal independently of such Act, both parties
shall have the right to invoke the Act at any time, and if the parties
are proceeding under the Act, they may abandon such procedures by
mutual consent at any time and renegotiate the renewal independently
of the Act.
J.
Receivership and foreclosure.
(1)
Termination by insolvency. Any franchise authorized
herein shall, at the option of the City, cease and terminate 120 days
after the appointment of a receiver or trustee to take over and conduct
the business of the franchisee, whether in a receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
said 120 days, or unless:
(a)
Such receivers or trustees shall have, within
120 days after their election or appointment, fully complied with
all the terms and provisions of this chapter and the franchise granted
pursuant hereto, and unless the receivers or trustees, within said
120 days, shall have remedied all defaults under the franchise; and
(b)
Such receivers or trustees shall, within said
120 days, execute an agreement duly approved by the court having jurisdiction
in the premises, whereby such receivers or trustees assume and agree
to be bound by each and every term, provision and limitation of any
franchise granted pursuant to this chapter.
(2)
Termination by judicial action. Any franchise granted
hereunder shall provide that, in the case of a foreclosure or other
judicial sale of the plant, property and equipment of the franchisee,
or any substantial part thereof, including or excluding the franchise,
the City may serve notice of termination upon the franchisee and the
successful bidder at such sale, in which event any franchise granted
and all rights and privileges of the franchisee thereunder shall cease
and terminate 30 days after service of such notice, unless;
K.
The policy of this chapter is to establish and maintain
an impartial competitive environment which will promote the development
of cable communications services by numerous providers while protecting
the public right-of-way and ensuring adequate compensation for its
use. It is the intent of this chapter that all providers of cable
communications services shall be equally subject to its terms.
A.
Performance bond. Within 60 days, or such further
time as may be granted by Council by resolution, from the effective
date of this chapter, the franchisee shall post a bond of $10,000
in cash or other suitable security to be approved by the City Manager
to guarantee its performance of the requirements and conditions of
this chapter. Council may at any time, by resolution, waive or reduce
said bond or release the security therefor.
(1)
Conditions. The performance bond shall provide, but
not be limited to, the following conditions: There shall be recoverable
by the City, jointly and severally, from the principal and surety,
any and all fines and penalties due to the City which are not timely
paid and any and all damages, losses, costs and expenses suffered
or incurred by the City resulting from the failure of the franchisee
to comply with one or more provisions of the franchise agreement.
Such losses, costs and expenses shall include, but not be limited
to, reasonable attorney's fees and other legal expenses.
(2)
Reduction. Upon written application by the franchisee,
the City may, at its sole option, permit the amount of the bond to
be reduced or may waive the requirements for a performance bond, subject
to the conditions set forth below.
(3)
Notice to cancel, etc. Not less than 30 days' prior
written notice to the City shall be provided of the franchisee's intention
to cancel, materially change or not renew the initial provisions of
the bond.
B.
Liability; damages; insurance and indemnity.
(1)
Liability and insurance. The franchisee shall furnish
the City with written evidence of insurance not later than 60 days
after the effective date of the franchise and thereafter throughout
the duration of the franchise and any extensions or renewals thereof.
Failure to provide a certificate of insurance in a timely manner shall
constitute a violation of this chapter.
(a)
Insurance contract coverage limits.
[1]
The insurance contracts shall insure the franchisee
and the City against any claim, demand or loss for injury to persons
or damage to property resulting from, growing out of or connected
with the construction, operation or maintenance of the CATV system
within the City, which contracts of insurance shall have a minimum
of:
[2]
Such general liability insurance must include
coverage for all of the following: comprehensive form, premises operations,
explosion and collapse hazard, underground hazard, products/completed
operations hazard, contractual insurance, broad form property damage
and personal injury.
[3]
Said amounts of insurance coverage may be increased
at the request of the City to compensate for inflation.
(b)
The franchisee shall maintain, throughout the
term of the franchise, automobile liability insurance for owned, nonowned
or rented vehicles in the minimum amount of:
(d)
Any insurance policy obtained by the franchisee
in compliance with this section shall be filed and maintained with
the Clerk/Treasurer during the term of the franchise and may be changed
from time to time to reflect changing liability limits. The franchisee
shall immediately advise the City of any litigation that may develop
that would affect the franchisee's ability to maintain this insurance.
(e)
Neither the provisions of this section nor any
damages recovered by the City hereunder shall be construed to or shall
limit the liability of the franchisee under any franchise issued hereunder
or for damages.
(f)
All insurance policies provided under the requirements
of this chapter shall be written by companies authorized to do business
in the state and approved by the State Department of Commerce Insurance
Bureau.
(g)
All insurance policies maintained pursuant to
a franchise agreement shall contain the following endorsement: It
is hereby understood and agreed that this insurance policy may not
be canceled by the insurance company nor the intention not to renew
be stated by the insurance company until 30 days after receipt by
the Clerk/Treasurer and the City Attorney, by registered mail, of
a written notice of such intention to cancel or not to renew.
(h)
All contractual liability insurance policies
maintained pursuant to the franchise shall include the provision of
the following hold-harmless clause: At any time during the term of
the franchise agreement, the City may request, and the franchisee
shall comply with such request, to name the City as an additional
named insured for all insurance policies written under the provisions
of the franchise agreement.
(2)
Indemnification. The franchisee shall, at its sole
cost and expense, fully indemnify, defend and hold harmless the City,
its officers, boards and commissions and City employees against any
and all claims, suits, actions, liability and judgments for damages,
including, but not limited to, expenses for reasonable legal fees
and disbursements and liabilities assumed by the City in connection
therewith:
(a)
To persons or property, to the extent attributable,
arising out of or through the acts or omissions of the franchisee,
its servants, agents or employees. This indemnity shall not apply
to the extent the claim is attributable to the negligence or other
fault of the City or any of its agents, servants or employees.
(b)
Arising out of any invasion of the right of
privacy, for defamation of any person, firm or corporation, or the
violation or infringement of any copyright, trademark, trade name,
service mark or patent, or of any other right of any person, firm
or corporation (excluding claims arising out of or relating to City
programming or access programming).
(c)
Arising out of the franchisee's failure to comply
with the provisions of any federal, state or local statute, ordinance
or regulation applicable to the franchisee in its business hereunder.
(3)
The foregoing indemnity is conditioned upon the following:
The City shall give the franchisee prompt notice of the making of
any claim or the commencement of any action, suit or other proceeding
covered by the provisions of this section. Nothing herein shall be
deemed to prevent the City from cooperating with the franchisee and
participating in the defense of any litigation by its own counsel
at its sole cost and expense.
C.
Fines.
(1)
Assessment. The following fines shall apply and liability
therefor shall accrue from the date of the dispatch of notice, unless
otherwise provided.
(a)
A violation of the rights of individuals and
privacy considerations, unless through no fault of the franchisee,
as provided in this chapter: $50 per subscriber per occurrence, up
to a maximum of $250 per occurrence.
(b)
Failure of the system to perform, through a
fault of the franchisee, in the event of a public emergency or vital
information situation: $500 per occurrence.
(c)
For failure to restore damaged property to an
injured party: the franchisee shall restore property within 30 days,
unless circumstances prevent restoration and notice of such damaged
area is given to the City, including actual costs of restoration.
(d)
Upon failure of the franchisee to provide evidence
of insurance to the City, the City shall notify the franchisee within
five days of the due date. If not corrected within five days, the
franchisee shall be fined $50 per day, up to a maximum of $500 per
occurrence. After the ten-day period, the City may seek insurance.
(e)
For occurrences of multiple similar unresolved
service-oriented complaints, the City may assess a fine of $10 per
occurrence, up to $250 per month.
(2)
Procedure for assessment.
(a)
For a fine to be assessed there shall be a hearing
before the Cable Television Committee or other designated committee
where the franchisee may produce evidence of complaint resolution
or action taken. If the Cable Television Committee or other designated
committee makes a finding to assess the fine, such recommendation
shall be given to Council.
(b)
Council shall hear evidence at a public hearing
where the franchisee may introduce evidence on its behalf. Council
may assess a fine in accordance with this chapter. The franchisee
has 10 business days to pay such fine. Thereafter the City levies
against the security. If at any time such complaints are resolved
satisfactorily prior to Council assessment of said fine, the process
shall cease.
A.
Construction and technical standards. The franchisee
shall construct, install, operate and maintain its system in a manner
consistent with all laws, ordinances, construction standards, governmental
requirements and FCC technical standards. The franchisee, through
the system, shall provide uniform, strong signals which are free from
any significant distortion and interference. The system shall be designed,
established, constructed, operated and maintained for 24 hours a day
continuous operation. The system shall produce, for reception on subscribers'
receivers which are in good working order, either monochrome or color
pictures (provided that the receiver is color capable) which are free
from any significant interference or distortion which would cause
any material degradation of video or audio quality.
(1)
State of the art. The franchisee shall establish,
construct, install, operate and maintain its system in accordance
with the highest standards of the art of cable communications, such
standards to include, but not be limited to, the following:
(a)
The system will be spaced to permit a minimum
of 400 MHz operation and will be capable of utilizing the latest state-of-the
art home terminals and other devices.
(b)
The system will utilize home terminals which
make the system adaptable for development of future services.
(c)
The franchisee shall maintain its system facility
in a manner which will continue to enable it to add new services and
associated equipment as they are developed, available and proved marketable
to subscribers. The new services and associated equipment will be
added to the system facilities when they are determined to be technically
reliable and adaptable to the system at a cost to the subscriber that
is acceptable in the marketplace.
(d)
The franchisee shall maintain its system facility
in a manner which will reasonably ensure that signals originating
from any source regulated by the FCC shall not cause detectable interference
to the system.
(2)
Prior approval. Prior to erection or installation
by the franchisee of any towers, poles, underground conduits or fixtures
for use in connection with the installation, construction, maintenance
or operation of a cable communications system authorized under this
chapter, the franchisee shall first submit to the City and other designated
parties for approval a concise description of the facilities proposed
to be erected or installed, including engineering drawings, if required,
together with a map and plans indicating the proposed location of
all such facilities. No erection or installation of any tower, pole,
underground conduit or fixture for use in a cable communications system
shall be commenced on public property by any person until approval
therefor has been received from the City. Such approval shall not
be unreasonably withheld.
(3)
Noninterference with public ways. The franchisee's
system and associated equipment erected by the franchisee 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 the said streets, alleys or other
public ways and places. No poles or other fixtures placed in any public
ways by the franchisee shall be placed in such a manner as to interfere
with normal travel on such public way.
(4)
Accuracy of maps. 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)
Conformity with technical standards. Construction,
installation and maintenance of the public communications system shall
be performed in an orderly and workmanlike manner, in accordance with
then current technological 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.
(b)
In any event, the system shall not endanger
or interfere with the safety of persons or property in the franchise
area or other areas where the franchisee may have equipment located.
(c)
All worker facilities, conditions and procedures
that are used during construction, installation and maintenance of
the cable system shall comply with the standards of the Occupational
Safety and Health Administration.
B.
Noninterference. Any cable communications system operating
hereunder shall be operated and maintained in such a manner as to
assure an essentially leakfree system providing sharp, clear and steady
reception, and so that it will not interfere with any installations
of the City or a public utility serving the City, any other television
or communications receivers not connected to the facilities of the
franchisee, or any type of electronic communications equipment. The
franchisee shall promptly take appropriate measures to eliminate any
such interference after notice thereof.
(1)
Interference caused by subscribers. Interference generated
by a subscriber's radio or television receiver or by equipment of
a subscriber attached to the franchisee's equipment shall be the responsibility
of the subscriber; provided, however, that the franchisee shall be
responsible for the suppression of such receiver or equipment generated
interference that is distributed by the franchisee's system when the
interfering signals are introduced into the system at the receiver
or point of connection of such equipment of the subscriber. If the
cause of interference has been identified as resulting from the receiver
or equipment of a subscriber, the franchisee shall advise the subscriber
to take corrective action to eliminate the interference and shall
offer to assist the subscriber in such action. If the subscriber refuses
to take corrective action or if corrective action cannot be taken
for any reason, the franchisee may disconnect the subscriber from
the system until corrective action has been taken or the offending
receiver or equipment has been replaced.
(2)
Standby power. The franchisee shall maintain equipment
capable of providing standby power for a minimum of four hours for
the headend and three hours for transportation and trunk amplifiers.
C.
Extension of service. The franchisee shall provide
additional service only in those areas of the City in which installation
and operation of the communications system would be economically feasible.
The franchisee shall extend its communications system to additional
residential areas not already served by a cable system within 12 months
after the density in such areas has reached 50 homes per cable mile.
In calculating cable mile, the distance from the existing cable to
the new area shall be included, but the distance from a street or
easement to a residence shall not be included.
D.
Use of streets.
(1)
Interference with persons, improvements, public and
private property and utilities. The franchisee's 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 any improvements the City,
county or state may deem proper to make;
(c)
Not interfere with the free and proper use of
public streets, alleys, bridges, easements or other public ways, places
or property, except to the minimum extent possible during actual construction
or repair;
(d)
Not interfere with the rights and reasonable
convenience of private property owners, except to the minimum extent
possible during actual construction or repair; and
(e)
Not obstruct, hinder or interfere with any gas,
electric, water or telephone facilities or other utilities located
within the City.
(2)
Restoration. In case of any disturbance or change
in the condition of any pavement, sidewalk, driveway, other surfacing
or real property, restoration to a condition equal to the surrounding
area or better than the area must be done in a workmanlike manner
in accordance with the same standards for such work performed by the
City. Restoration shall take place no more than 30 days after the
damage has occurred, unless circumstances prevent restoration and
notice of such damaged area is given to the City.
(3)
Erection, removal and common use of poles. The franchisee
shall use its best efforts to make use of already existing poles serving
the City. The City may require the franchisee to use such poles and
structures where public convenience would be enhanced thereby and
the terms of the use available to the franchisee are just and reasonable.
If the City determines that the franchisee may erect poles, no poles
shall be erected by the franchisee without prior approval of the City
with regard to location, height, type and any other pertinent aspect.
However, no location of any pole or wireholding structure of the franchisee
shall give rise to a vested interest, and such poles or structures
shall be removed or modified by the franchisee at its own expense
whenever the City determines that the public convenience would be
enhanced thereby.
E.
Maintenance of system.
(1)
Number of channels. The franchisee shall provide at
least 36 usable channels that have been tested and accepted to meet
FCC specifications at the farthest point from the headend and shall
adhere to the maintenance procedures described in Appendix A, attached
to original Ordinance No. 85-005, passed March 3, 1986.
(2)
Maintenance technician. The franchisee shall provide
for a maintenance technician on call 24 hours a day.
(3)
Response time. The franchisee shall, between the hours
of 6:00 a.m. and 12:00 midnight, immediately respond to any problem
attributable to an area outage that affects five or more customers,
and it shall respond to any problems attributable to an area outage
affecting less than five subscribers within the following 24 hours.
(4)
Notice of shutdown. The franchisee shall, at least
12 hours before any shutdown initiated by the franchisee, give notice
on designated channels where loss of service affects five or more
subscribers.
(5)
System-related service calls. The franchisee will
not charge for any service call if the problem is system related.
A.
Generally. All cable communications systems shall
be operated in compliance with all applicable federal, state and City
laws, rules, regulations and appropriate judicial decisions.
B.
Nondiscrimination. It shall be the obligation of the
franchisee to serve all residents of the City within the franchise
area served by the franchisee, without regard to the income level
of the residents of the local area in which any group of potential
subscribers resides. It shall be the further obligation of the franchisee
to provide uniform customer service to all residents and geographic
areas of the City within the franchise area serviced by the franchisee.
The rates for the cable communications system shall be applied fairly
and uniformly to all subscribers in the City in accordance with the
rate schedule established from time to time by the franchisee. Nothing
contained herein shall prohibit the franchisee from offering:
C.
Equal opportunity. The franchisee shall not refuse
to hire or employ, nor bar or discharge from employment, any person,
nor discriminate against any person in compensation or in terms, conditions
or privileges of employment, because of age; race; height; weight;
religion, or lack thereof; disability; color; national or sectional
origin; sex; familial status; sexual orientation; gender identity;
or that of their friends or associates.
[Amended 9-20-2021 by Ord. No. 21-009]
D.
Records.
(1)
The franchisee shall maintain the following records
for a period of two years:
(a)
All service logs;
(b)
The number of installations;
(c)
The number of disconnections;
(d)
The number of subscribers to each premium channel;
(e)
Changes in channel programming;
(f)
All technical reports required elsewhere in
this chapter, and maps and plans;
(g)
All complaints received; and
(h)
Proof of a performance bond.
(2)
All records maintained, pursuant to Subsection D hereof, shall be available for inspection and for copying, where requested by the Cable Television Committee or other designated committee upon 48 hours' notice. The Cable Television Committee or other designated committee shall comply with all state and federal privacy acts regarding information and records obtained from the franchisee.
E.
Programming services. Each franchisee shall include
the following in the programming services offered to subscribers:
(3)
Public access channels, as defined in § 244-2 and as may be further provided in the franchise agreement.
(4)
Leased access channels, as required by the Cable Communications
Policy Act of 1984, as amended, or future federal law. The operator
shall have sole responsibility for all operating aspects and for the
fixing of rates and conditions for leased access use.
(5)
Pay-per-view to the extent such programming becomes
available on an economically viable basis.
(6)
If requested, the franchisee shall submit to any local
publisher of daily, weekly or monthly guides, notice of a change in
programming or in services offered. Such notice shall also be submitted
to the Clerk/Treasurer and the City Attorney.
(7)
The franchisee shall use its best efforts to ensure
diversity of programming.
(8)
The franchisee shall use its best efforts to provide
modern, up-to-date cable service to take advantage of new industry
developments and to include in its operations and planning measures
to avoid obsolescence of its system facilities and services.
F.
Lockout devices. The franchisee shall provide to each
potential subscriber information concerning the availability of a
lockout device for use by a subscriber. Such device shall permit the
subscriber to lock out any nonbasic cable service channel and shall
be made available by the franchisee upon the subscriber's request.
The franchisee may sell or lease the lockout device to its subscribers.
Lockout devices must be available to a subscriber within 30 days of
the effective date of the franchise and throughout the duration of
the franchise.
G.
Privacy safeguards. The franchisee shall comply with
all requirements of the Cable Communications Policy Act of 1984, as
amended, regarding the privacy of subscribers.
H.
Privacy monitoring. The franchisee shall not permit
the transmission of any signal (aural, visual or digital), including
"polling" or monitoring the channel selection from any subscriber's
premises, without first obtaining written permission of the subscriber.
This provision is not intended to prohibit the use or transmission
of signals useful only for the control or measurement of system performance.
A franchisee shall not permit the installation of any special terminal
equipment in any subscriber's premises of two-way services utilizing
aural, visual or digital signals, without first obtaining written
permission of the subscriber. No franchisee shall predicate regular
subscriber service on the subscribers granting of such permission.
Without written authorization from the subscriber, neither the franchisee
nor any other person shall activate, use, operate or tap any channel
from a subscriber's location. A subscriber may revoke any authorization
previously given by delivering to the franchisee a written statement
of that intent. The franchisee shall not tabulate, nor permit others
to tabulate, any subscriber use of the cable communication system
which would reveal the opinions or commercial product preferences
of individual subscribers, whether residential or business, or of
any occupant or user of the subscriber's premises.
I.
Subscriber privacy.
(1)
The franchisee shall not disclose any information
concerning individual subscriber viewing habits or responses, except
as required by programming or service providers. Nor shall the franchisee
disclose any of the following without the subscriber's consent:
(2)
This subsection shall not be construed to prevent
the disclosure of any such information reasonably required in any
legal action or collection procedure.
J.
Inspections. Construction work and installation by
the franchisee shall be subject to reasonable inspection and approval
by the City.
K.
Barriers and warning devices. Any installation or
removal thereof shall be adequately protected by barriers and warning
devices for the reasonable protection of the public.
L.
Tree trimming. The City Manager may, in his or her
discretion, grant permission for the trimming of trees when necessary
to make the lines of the franchisee safe and accessible, such trimming
to be done under the supervision of the City.
M.
Raising wires. At its own expense, the franchisee
shall make due provision, upon notice, to raise its wires or otherwise
remove them, for the passage of any building or structure of any form
or character on or over any street, highway or other public place
occupied by any property of the franchisee for City purpose; provided,
however, that this section shall not restrict the franchisee from
requiring reasonable reimbursement for the cost thereof (payable in
advance) from private sources where private interests are involved.
N.
Local office. The franchisee shall maintain an office
in the City or within 10 miles of the City. Such office shall have
reasonable office hours. All service-oriented complaints received
by the office shall be recorded or logged.
O.
Service calls and complaint procedure. The franchisee
shall respond to and resolve subscribers' complaints or requests for
service in connection with repairs, maintenance and malfunctions of
system facilities. The franchisee shall respond as quickly as possible
to such complaints and requests but shall in any case respond within
one business day. Complaints or requests which may pose a potential
health and safety hazard will be responded to immediately. In connection
with construction complaints, the franchisee shall respond within
five business days. Installations will be done within one week of
a request by a subscriber.
P.
Emergency override. The franchisee shall, without
charge, provide service and maintain public emergency transmission
facilities to the City, as described in the franchise agreement.
Where there is an area outage for a period of
48 hours or more, the franchisee shall automatically give a prorated
credit on a subscriber's monthly charges. Where outage is sporadic,
and such outage is for a period of 48 hours or more, the subscriber
shall be entitled to a prorated credit on the subscriber's monthly
charges. Outage shall include the impairment or disruption of the
signal which is caused by the negligence or failure to act of the
franchisee, or the inability of the franchisee to correct leakage
caused by the franchisee.
[Amended 8-2-1999 by Ord. No. 99-006]
A.
AFFILIATE
CONTROL
TRANSFER
(1)
(2)
(3)
(4)
(5)
(6)
Definitions.
Any person or entity that owns or controls, is owned or controlled
by, or is under common ownership or control with a franchisee.
The legal or practical ability to exert actual working control
over the affairs of the franchisee, either directly or indirectly,
whether by contractual agreement, majority ownership interest, any
lesser ownership interest or in any other manner, whether active or
passive. A presumption that a transfer of control has occurred shall
arise upon the acquisition or accumulation of 5% or more of the ownership
of a franchisee by any person or group of persons acting in concert,
none of whom already own or control 50% or more of such right or control,
singularly or collectively, whether such ownership is active or passive.
A franchisee is responsible for ensuring that the intent of this section
is carried out. If for any reason an event occurs that would require
the City's approval under this section, whether or not such event
is, directly or indirectly, within the franchisee's control, such
event shall constitute a "transfer" for purposes of this section,
other applicable law and a franchise agreement.
Any transaction in which:
Any ownership (active or passive) or other right,
title or interest of more than 5% in a franchisee or its cable system
is transferred, sold, assigned, leased, sublet or mortgaged, directly
or indirectly, in whole or in part;
There is any change, acquisition or transfer
of control of the franchisee or its direct or indirect parents;
The rights and/or obligations held by the franchisee
under the franchise are transferred, directly or indirectly, to another
party or affiliate;
Any change or substitution occurs in the general
partners of the franchisee where applicable;
The franchisee, or its corporate parents at
any level, enter into any transaction that materially increases the
debt that is to be borne by the cable system, directly or indirectly,
in a manner that may adversely affect system rates or services; or
Any assets or property of the franchisee used
or held in connection with a cable system are subjected to any lien,
mortgage, lease or security interest.
B.
Application for transfer.
(1)
A franchisee shall promptly notify the City of any
proposed transfer, change in control and/or assignment.
(2)
At least 120 calendar days prior to the contemplated
effective date of transfer, a franchisee shall submit to the City
a written application for the approval of the transfer. Such an application
shall provide complete information on the proposed transaction, including
details on the legal, financial, technical and other qualifications
of the transferee, and on the potential impact of the transfer on
subscriber rates and service. At a minimum, the following information
must be included in the application:
(a)
All information and forms required under federal
law.
(b)
Name and address of the applicant and identification
of the ownership and control of the applicant, including the names
and addresses of the 10 largest holders of the ownership interest
in the applicant and affiliates of the applicant, and all person(s)
with 5% or more ownership in the applicant and its affiliates; the
person(s) who control the applicant and its affiliates; all officers
and directors of the applicant and its affiliates; and any other business
affiliation and cable system ownership interest of each named person.
(c)
A statement detailing its business or corporate
organization, including but not limited to a statement disclosing
five-percent or greater interests that the applicant has in any other
business, corporation or partnership and a statement describing all
intra-company relationships of the applicant, including parent, subsidiary
or affiliated companies.
(d)
If the applicant is a corporation, audited financial
statements for the five previous fiscal years. If the applicant is
a partnership, copies of the U.S. Partnership Return of Income (IRS
Form 1065) for the five previous fiscal years. If the applicant is
a sole proprietorship, copies of personal financial statements for
the five previous fiscal years.
(e)
An estimated five-year operations pro forma
which shall include the initial and continuing plant investment, annual
profit and loss statements detailing income and expenses, annual balance
sheets and annual levels of subscriber penetration. The pro forma
shall also state the average return on investment anticipated by the
applicant for the five-year operations period and shall state the
method of computation thereof. Costs anticipated for voluntary services
or contributions shall, if presented, be incorporated in the pro forma
as required in this chapter.
(f)
A statement prepared by a certified public accountant
regarding the applicant's financial ability to complete the construction
and operations of the cable system proposed.
(g)
A list of existing franchises held by the applicant
indicating when the franchises were issued and when the systems were
constructed in each respective governmental unit, together with the
name and address and phone number of a responsible governmental official
knowledgeable of the applicant.
(h)
A statement detailing the applicant's prior
operational experience in cable television systems and/or microwave
service, including that of its officers, management and any staff
to be associated with the proposed operations.
(i)
Identification of the area of the City to be
served by the proposed cable system, including a description of the
proposed franchise area's boundaries.
(j)
A general statement of the applicant's ability
and intent to incorporate technological improvements and advancements
in the cable television system as such improvements or advancements
are generally available in the industry, including services such as
Internet, data, and/or telephony service.
(k)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system, including but
not limited to a demonstration that the applicant meets the following
criteria:
[1]
The applicant must not have had an application
for an initial or renewal franchise in the City lawfully denied within
three years preceding the submission of the application;
[2]
The applicant must not have had any cable television
franchise lawfully revoked by any franchising authority within three
years preceding the submission of the application;
[3]
The applicant must have the necessary authority
under Michigan law to operate a cable system;
[4]
The applicant must have the necessary authority
under federal law to hold the franchise and operate a cable system.
An applicant must have, or show that it is qualified to obtain, any
necessary federal, state, or local franchises, waivers, permits, licenses
or domestic or foreign clearances required to operate the system proposed;
[5]
The applicant shall not have been convicted,
at any time during the 10 years preceding the submission of the application,
of any act or omission of such character that the applicant cannot
be relied upon to deal truthfully with the City and the subscribers,
or to substantially comply with its lawful obligations under applicable
laws, including obligations under consumer protection laws and laws
prohibiting anticompetitive acts, fraud, racketeering, or other similar
conduct;
[6]
The applicant shall not have filed materially
misleading information in its application or have intentionally withheld
information that the applicant lawfully is required to provide.
(l)
If the applicant proposes to provide cable service
to an area already serviced by an existing franchise, the identification
of the area where the overbuild would occur and the ability of the
public rights-of-way and other property that would be used by the
applicant to accommodate an additional cable system.
(m)
A detailed statement of the corporate or other
business entity organization of the proposed transferee, together
with an explanation of how decisions regarding the system will be
made if the proposed transaction is approved.
(n)
Any contracts, financing documents or other
documents that relate to the proposed transaction, and all other documents,
schedules, exhibits or the like referred to therein.
(o)
Any documents related to the transaction (including
any documents regarding rates the transferee expects to charge) that
have been provided to any entity that has been asked to provide financing
(debt, equity or other kind) for or to underwrite any offering made
in connection with the proposed transaction.
(p)
Any shareholder reports or filings with the
Securities and Exchange Commission (SEC), the Federal Trade Commission
(FTC) or the Federal Communications Commission (FCC) that discuss
the transaction, and any filings required under federal or state law
in connection with the proposed transaction.
(q)
Complete financial statements for the franchisee
and any potential transferees for the last three years, including
balance sheets, income statements, profit and loss statements, and
documents detailing capital investments and operating costs.
(r)
A detailed description of the sources and amounts
of the funds to be used in the proposed transaction, indicating how
the debt-equity ratio of the system will change in the course of the
transaction; what entities will be liable for repayment of any debt
incurred; what interest, payment schedule and other terms or conditions
will apply to any debt financing; any debt coverages or financial
ratios any potential transferees will be required to maintain over
the franchise term if the proposed transaction is approved; what financial
resources would be available to the system under the control of the
proposed transferee; whether the proposed transferee can meet debt-equity
or any other required ratios without increasing rates, with any assumptions
underlying that conclusion, and, if not, what increases would be required
and why.
(s)
Any other information necessary to provide a
complete and accurate understanding of the financial position of the
system before and after the proposed transfer, including but not limited
to two sets of projected income statements and cash flow statements,
including capital investments, for at least five years after the proposed
transfer, one set assuming the transfer is approved, and one set assuming
the transfer is not approved, each set stating specifically what assumptions
are being made with respect to any rebuild and upgrade of the system.
(t)
Complete information regarding any potential
impact of the transfer on subscriber rates and services.
(u)
A detailed analysis of franchise fee payments
made by the franchisee or any affiliate, during the life of the franchise,
showing:
[1]
Total gross revenues, by category (e.g., basic,
pay, pay-per-view, advertising, installation, equipment, late charges,
Internet services, miscellaneous, other);
[2]
What revenues, by category, were included in
the calculation of the franchise fee, so that it is clear what, if
any, revenues were not included and the dollar value of those exclusions;
[3]
The value of any noncash compensation received
(e.g., trades for advertising spots), showing what amounts of noncash
compensation were included in the franchise fee calculation;
[4]
What, if any, deductions were made from revenues
in calculating the franchise fee (e.g., bad debt), and the amount
of each deduction;
[5]
If an outside agency was used to collect revenue
(e.g., a collection agency, an advertising agency paid on the basis
of percentage of sales, a data, Internet services or telephony provider),
how much revenue was received by these agencies, and the total amount
of revenues included for purposes of the franchise fee calculation.
(v)
Information sufficient to permit the City to
determine the franchisee's compliance with its franchise obligations
over the term of the franchise, including specific descriptions of
any noncompliance of which the franchisee or any potential transferee
is aware.
(w)
Any representations made to anyone, in connection
with the transaction, about the franchisee's compliance with its franchise.
(x)
A brief summary of the proposed transferees
plans for at least the next five years regarding line extensions,
plant and equipment upgrades, channel capacity, expansion, play and
equipment upgrades, channel capacity, expansion or elimination of
services and any other changes affecting or enhancing the performance
of the system.
(y)
The City may, at its discretion and upon request
of an applicant, waive in writing any of the information required
by this section. The City may request additional information after
receiving an application, and an applicant must respond fully and
completely to such report.
(3)
At the franchisee's option, the franchisee may notify the City of the proposed transaction in general terms at least 150 days prior to the contemplated effective date of a transfer and request that the City waive some or all of the information requirements specified in Subsection B(2) of this section and the reasons for such request. To the extent consistent with the applicable law, the City may waive in writing any such requirement that information be submitted as a part of the initial application, without thereby waiving any rights it may have to request such information after the initial application is filed.
(4)
For the purpose of determining whether it shall consent
to a transfer, the City or its agents may inquire into all qualifications
of the prospective transferee and such other matters as the City may
deem necessary to determine whether the transfer is in the public
interest and should be approved, denied or conditioned. The franchisee
and any prospective transferees shall assist the City in any such
inquiry, and if they fail to do so, the request for transfer may be
denied.
C.
Determination by City.
(1)
In making a determination as to whether to grant,
deny or grant subject to conditions an application for a transfer,
the City may consider, without limitation, the legal, financial, and
technical qualification of the transferee to operate the system; any
potential impact of the transfer on subscriber rates or services;
whether the incumbent cable operator is in compliance with this chapter
and its franchise agreement, and, if not, whether the proposed transferee
will cure any noncompliance; whether the transferee owns or controls
any other cable system in the City, and whether operation by the transferee
may eliminate or reduce competition in the delivery of cable service
in the City; and whether operation by the transferee or approval of
the transfer would adversely affect subscribers, the City's interest
under this chapter, a franchise, other applicable law, or the public
interest or make it less likely that the future cable-related needs
and interests of the community would be satisfied at a reasonable
cost.
(2)
Any transfer without the City's prior written approval
shall be ineffective and shall make a franchise subject to cancellation
at the City's sole discretion, and to any other remedies available
under this chapter, a franchise agreement or applicable law.
(3)
The franchisee shall be fully liable under this chapter
for any transfer that is in violation of the terms of this chapter
and caused in whole or in part by any other entity or entities, including
but not limited to any parents or affiliated entities, as if such
transfer had been caused by the franchisee itself.
(4)
Any mortgage, pledge or lease shall be subject and
subordinate to the rights of the City under this chapter, a franchise
agreement and applicable law.
(5)
If any transfer should take place without prior notice
to the City, the franchisee and the transferee shall within five working
days notify the City that such a transfer has occurred. Franchisee
and transferee shall be subject to all of the requirements of this
section and shall also be subject to any and all sanctions, fines
and penalties of this chapter and any other applicable City ordinance
or state statute.
D.
Transferee's agreement. No applications for a transfer
shall be granted unless the transferee agrees in writing that it will
abide by and accept all terms of this chapter and a franchise agreement,
and that it will assume the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of the previous franchisee
under this chapter and a franchise agreement for all purposes, including
renewal, unless the City, in its sole discretion, expressly waives
this requirement in whole or in part.
E.
Consent of City to transfer or assignment shall not
constitute waiver of City rights. The consent or approval of the City
Council to any transfer of a franchise shall not constitute a waiver
or release of any of the rights of the City unless the City specifically
releases or waives such rights.
F.
Franchisee must notify City of any agreement to transfer
or assign cable system or terms of sale. A franchisee must notify
the City whenever it reaches a definitive written agreement to transfer
its cable system or any portion thereof. A franchisee must also notify
the City of the terms and conditions of any proposed transfer.
G.
Processing fee may be imposed by City. The City may
impose a processing fee upon a franchisee and/or the transferee to
cover the City's direct or indirect costs of considering and evaluating
any application for a transfer of a franchise.
Any franchise granted to a person desiring to construct a new cable communications system in the City shall be issued pursuant to and subject to this chapter and shall comply with § 244-4, but may contain such additional construction requirements and financial security provisions as the City may reasonably deem necessary to assure the timely construction of a cable communications system of the type and quality required hereby.
The franchisee shall have no recourse whatsoever
against the City or its officials, boards, commissions, agents or
employees for any loss, costs or expense of damages arising out of
any provision or requirement of the franchise or because of the enforcement
of the franchise, unless such loss, costs or damages are occasioned
by negligence or intentional acts.
The franchisee shall agree to be bound by all
terms and conditions agreed to in the request for information as listed
in Appendix B attached to original Ordinance No. 85-005, passed March
3, 1986. Appendix B is hereby incorporated by reference and made a
part of this chapter. No other oral or written statements or agreements
are binding, unless they are in writing and mutual modifications are
as provided in this chapter.
A.
The franchisee shall not be declared at fault or be
subject to any sanction under any provision of this chapter in any
case in which performance of such provision is prevented for reasons
beyond the franchisee's control. A fault shall not be deemed to be
beyond the franchisee's control if it is committed by a corporation
or other business entity in which the franchisee holds a controlling
interest, whether held directly or indirectly.
B.
Pending litigation to which the franchisee is a party
shall not exclude the franchisee from the performance of its obligations
under this chapter and under the contractual agreement between the
City and the franchisee. Failure of the franchisee to perform such
obligations because of pending litigation may result in forfeiture
or revocation of the franchise pursuant to the provisions of this
chapter. Further, the franchisee cannot use pending litigation of
another as an excuse not to perform or comply with this chapter.
No person, whether or not a subscriber of the
cable system, may intentionally or knowingly damage or cause to be
damaged any wire, cable, conduit, equipment or apparatus of the franchisee,
or commit any act with intent to cause such damage, or tap, tamper
with or otherwise connect any wire or device to a wire, cable, conduit,
equipment and apparatus or appurtenances of the franchisee with intent
to obtain a signal or impulse from the cable system without authorization
from or compensation to the franchisee, or obtain cable television
or other communications service with intent to cheat or defraud the
franchisee of any lawful charge to which it is entitled.
A.
In accepting any franchise granted by the City pursuant
to this chapter, the franchisee acknowledges that its rights hereunder
are subject to the police power of the City to adopt and enforce general
ordinances necessary for 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 powers.
B.
Any conflict between the provisions of this chapter
or the franchise agreement 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 that applies exclusively to the franchisee
or the cable communications system, which contains provisions inconsistent
with this chapter, shall prevail only if, upon such exercise, the
City reasonably finds that an emergency exists constituting a danger
to health, safety, property or general welfare, and such exercise
is mandated by law.
If any section, subsection, sentence, clause,
phrase or portion of this chapter is for any reason held invalid by
the FCC or its successor agency or any court or agency of competent
jurisdiction, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not affect the validity
of the remaining portions of this chapter.
The franchisee shall not be excused from complying
with any of the terms and conditions of any 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.
