[HISTORY: Adopted by the Board of Supervisors
of the County of Frederick 3-11-2009.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed
former Ch. 61, Cable Franchise, adopted 11-10-1993.
This chapter shall be known and may be cited
as the "Cable Television Franchise Chapter."
A.
Terms of the act not otherwise defined herein, whether
capitalized or not, shall have the meanings ascribed to them in Title
VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521
et seq. (hereinafter the "Communications Act").
B.
When not inconsistent with the context, words used
in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include
the plural number.
C.
The word "shall" is always mandatory and not merely
directory.
D.
BOARD
CABLE TELEVISION SYSTEM or CABLE SYSTEM (sometimes hereinafter
referred to as "system")
COUNTY
FCC
FRANCHISE AREA
FRANCHISEE
GROSS REVENUES
HOME
PERSON
PUBLIC RIGHTS-OF-WAY
RESIDENTIAL SUBSCRIBER
SENIOR CITIZEN
SERVICE AREA
SUBSCRIBER
VDOT
For the purpose of this chapter, the following terms,
phrases, words and their derivations shall have the meanings given
herein:
The Board of Supervisors of Frederick County, Virginia.
The same meaning as ascribed to the term "cable system" in
§ 15.2-2108.19 of the Code of Virginia.
The unincorporated portions of the County of Frederick, Virginia.
The Federal Communications Commission or its successor.
Unless otherwise provided in a franchise agreement, the entire
geographic area of the County.
The grantee of rights under a franchise granted pursuant
to this chapter.
Unless otherwise provided by applicable law, all compensation
and other consideration in any form derived directly or indirectly
by a franchisee from or in connection with the operation of that franchisee's
cable system to provide cable service.
Any single-family dwelling unit, whether a house, apartment,
trailer, rented room or otherwise.
Any individual, firm, partnership, association, corporation,
company, trust, governmental entity or organization of any kind.
The surface, the air space above the surface, and the area
below the surface of any public street, avenue, highway, boulevard,
concourse, driveway, bridge, tunnel, lane, alley or similar property
within the County in which the County now or hereafter holds any property
interest which, consistent with the purpose for which it was created,
obtained or dedicated, may be used for the purpose of installing,
operating and maintaining a cable system. No reference herein or in
any franchise agreement to a "public right-of-way" shall be deemed
to be a representation or guarantee by the County that its interest
or other right to control the use of such property is sufficient to
permit use of the property for the purpose of installing, operating
and maintaining a cable system. A franchisee shall be deemed to gain
only those rights to use the property as are properly in the County,
in the County's sole determination, and as the County may have the
right and power to give.
A purchaser in good standing of any service that the franchisee
delivers to any home, provided that that service is not utilized in
connection with a business, trade or profession.
Any residential subscriber who is 65 years of age or older.
Any area in the County in which a franchisee is actually
providing service, or that has a density of at least 25 homes per
linear mile and is contiguous to an area in which the franchisee has
installed its cable plant. For the purposes of this chapter, all homes
within 150 feet from any public right-of-way suitable for cable trunk
installation shall be counted in density determinations and shall
be considered as being within the "service area" as defined herein.
The County and a franchisee may, however, agree in a franchise agreement
to such other and different numbers of homes per linear mile and distances
from public right-of-way suitable for cable trunk installation.
Any person or entity lawfully receiving any service provided
by or carried on the franchisee's cable television system.
The Virginia Department of Transportation.
A.
The County shall have the authority, pursuant to § 15.2-2108.20
of the Code of Virginia, to grant one or more nonexclusive franchises,
which shall authorize each respective franchisee to construct, erect,
operate and maintain, in the public rights-of-way in the franchisee's
franchise area, poles, wires, cable, underground conduits, manholes
and other television conductors and fixtures necessary for the maintenance
and operation in such franchise area of a cable television system
and to thereafter provide cable service within the franchise area,
subject to such franchisee's agreement and obligation to provide cable
service within the franchisee's service area and to otherwise comply
with all provisions of this chapter and any agreement relating to
the grant of the franchise.
B.
No franchisee shall, as to rates, charges, service,
facilities, rules, regulations or in any other respect, make or grant
any preference or advantage to any person, nor subject any person
to any prejudice or disadvantage, provided that nothing in any franchise
granted hereunder shall be deemed to prohibit the establishment of
a graduated scale of charges to senior citizen subscribers and for
multiple installations at the same house or building. No franchisee
or its officers, stockholders or employees shall engage in the business
of sales, service, repair or installation of television and radio
receiving equipment.
C.
Any franchise granted hereunder as an initial authorization
and any renewal thereof shall be governed by the provisions of the
Communications Act and applicable state law, and any amendments or
superseding legislation, and shall be for a term not to exceed 15
years.
The County specifically retains all rights to
regulate rates charged by any franchisee for cable service, subject
to the provisions of relevant federal and state legislation and the
rules and regulations of applicable administrative agencies.
Every franchisee shall operate its cable system
as required by the FCC's rules and regulations and shall ensure compliance
with all applicable provisions of 47 CFR 76.605 (Technical Standards)
and any amendments thereto throughout the entire service area. Every
franchisee shall submit to the County copies of all proof-of-performance
tests required pursuant to 47 CFR 76.601 within 30 days after completion
of the same and any other performance tests that may be required by
subsequent amendment of the FCC's rules and regulations.
A.
Every franchisee, as a condition to its continued
entitlement to hold a franchise hereunder, shall save the County harmless
from all loss sustained by the County on account of any suit, judgment,
execution, claim or demand whatsoever resulting from negligence on
the part of the franchisee in the construction, operation or maintenance
of its cable television system in the County.
B.
Upon the granting of a franchise and following simultaneously with the filing of the acceptance required under § 61-17 hereof and at all times during the term of the franchise, the franchisee shall obtain, pay all premiums for and deliver to the County written evidence of payment of premiums for insurance policies providing for the types of coverage and policy limits specified in the franchise agreement. All policies shall be written by a company acceptable to the County, and the County shall be named as an additional insured thereunder. A certificate of these policies shall be furnished to the County as a condition to the grant of any franchise hereunder. The County reserves the right to require an increase in the amounts of coverage required by a franchise agreement by an amount not to exceed the amount of any increase in the consumer price index for each year after the adoption of this chapter.
C.
All insurance policies called for herein shall be
in a form satisfactory to the County Administrator. No insurance policy
shall be cancelable. Insurance policies written for a period of less
than the term of the franchise shall be renewed at least 60 days before
a policy's expiration, and the renewed policies and evidence of premium
payments shall be delivered forthwith to the County.
D.
No grantee shall permit any policy to expire or approach
less than 30 days prior to expiration without securing the delivery
to the County of a substitute, renewal or replacement policy or bond
in conformance with the provisions of this chapter.
E.
The County may require insurance policies described
in this section to run to the benefit of both the County, its officers,
employees, and agents, and other governmental units located and/or
operating within the County.
A.
Throughout the term of its franchise, every franchisee
shall maintain all parts of its cable system in good, working condition.
B.
Unless otherwise provided in a franchisee's franchise
agreement, every franchisee shall comply with the customer service
obligations established by 47 CFR 76.309(c) or any successor customer
service standards; provided, however, that no franchisee shall adopt
standards less stringent than those imposed by 47 CFR 76.309(c) in
effect on the date of this chapter without the express consent of
the County. The County shall appoint a complaint officer to be directly
responsible for assuring that all complaints have been satisfactorily
resolved. Subject to notification and request by affected subscribers
and to reasonable verification by a franchisee of a cable service
outage, every franchisee shall rebate a pro rata portion of the fee
charged to any subscriber for each calendar month in which such subscriber
has experienced more than 24 hours of cable service outage, with the
rebate being based on the total hours of outage compared to the total
number of hours available in the month to which such rebate applies.
Every franchisee shall keep a record in its offices of every complaint
received and a memorandum of the same indicating the manner or disposition
thereof. Complaint records shall be kept for two calendar years. The
franchisee shall make information pertaining to its complaint records
available to the County, the complaint officer or any other designees
of the Board of Supervisors for review and inspection during normal
business hours.
A.
In addition to other filings that may be set forth
herein, every franchisee shall file with the County Administrator,
upon request, true and accurate maps or plats of all existing and
proposed installations, and the County hereby reserves the right at
all times to reject any proposed installation the manner or place
of construction of which it deems contrary to public interest and
may order and direct the franchisee to move the location or alter
the construction of-any existing installation wherever the Board or
VDOT deems it is in the public interest to require such removal or
alteration, having due regard for the equities of the parties concerned
and the purpose of a franchise granted hereunder, provided that the
County shall reimburse a franchisee for removing or altering its facilities
to the same extent the County reimburses telephone or electric utilities
in similar circumstances.
B.
Every franchisee shall file with the County Administrator
a statement setting forth the names and addresses of all its directors
and officers and the position that each holds. In the event of a change
constituting a transfer of control of a franchisee or any change of
directors, the franchisee shall promptly file information setting
forth such change with the County Administrator.
C.
In addition, every franchisee shall file with the
County Administrator copies of rules, regulations, terms and conditions
adopted by the franchisee for the conduct of its business and such
other information as the County shall request with respect to the
franchisee's service within the County.
D.
An applicant for an initial or a renewal franchise
hereunder shall include in its application all information requested
by the County, subject to the provisions of governing law or regulations,
as the County deems reasonably appropriate to allow it to evaluate
such applicant's legal, financial and technical qualifications.
E.
If an initial applicant proposes to serve an area
then actually being served by an existing franchisee, the application
shall be submitted with proof of service of a copy of its application
upon such franchisee.
F.
The County shall provide all existing franchisees on whom service is required under Subsection E above with an opportunity to be heard and to make presentations pertaining to such application.
G.
In evaluating an application, the County shall be
governed by and comply with all relevant federal and state statutes.
A.
The County shall have the right to inspect all construction
or installation work performed by a franchisee within the service
area and to make such inspections as the County deems necessary to
ensure compliance with the terms of this chapter, other pertinent
provisions of law and any franchise granted hereunder. No poles, underground
conduits or other wire-holding structures shall be erected by a franchisee
without prior approval of the County or its duly authorized personnel
or abutting property owners where the County does not own the area
in which such are to be erected. To the extent possible, the franchisee
shall negotiate agreements with the appropriate parties to permit
it to utilize the existing poles and underground conduits throughout
the County. Any poles, underground conduits or other fixtures that
a franchisee is authorized by the County to install must be placed
in a manner to not interfere with or obstruct the usual travel on
the public streets or to interfere with any existing utility services.
All construction activities of a franchisee shall be conducted in
a manner that will cause minimum interference with the rights and
reasonable convenience of the property owners directly affected thereby.
Every franchisee shall maintain all structures, cable and related
equipment that are located in, over, under and upon the streets in
a safe, suitable, substantial condition and in good order and repair
at all times.
B.
All construction and installation by a franchisee
shall be effectuated in a manner that is consistent with the FCC's
rules, relevant local building codes, zoning and other regulatory
requirements, the National Electrical Safety Code and other standards
of general applicability to cable systems. No franchisee shall commence
any construction without obtaining all local zoning and other approvals,
permits and other licenses of general applicability to other entities
performing such construction and paying all costs and fees normally
imposed or charged therefor.
C.
Every franchisee shall complete construction of its
cable system to provide service to persons located within its service
area within three years from the date such persons came into the franchisee's
service area. Every franchisee shall extend energized trunk cable
throughout its service area at the rate of at least 33 1/3% per
year.
D.
Extensions.
(1)
No franchisee shall be required to extend energized
trunk cable in and/or through any portion of the County beyond and
outside the limits of its service area; provided, however, that a
franchisee may elect to provide cable service outside its defined
service area. In the event that the owner of any home or other structure
not within a franchisee's service area agrees, in writing, to pay
the excess cost of extending cable service to that location, then
a franchisee so requested by such owner shall provide cable service
to such home or other structure, provided that such owner's payment
obligation shall only apply to the costs incurred in extending cable
more than 200 feet from any feeder line.
(2)
For the purposes of calculating the average density
of an extension, the distance in linear miles shall be from the point
of beginning of the line extension to the end of the line extension.
The homes per linear mile calculation shall be the average number
of homes per linear mile along the entire length of the extension.
(3)
Nonpayment by any owner of a home or other structure
of costs associated with the immediately foregoing extension of service,
once such owner has agreed to such payment, shall be a Class 4 misdemeanor
and punishable as such.
E.
In case of any disturbance of pavement, sidewalk,
driveway or other surfacing, a franchisee shall, at its own cost and
expense and in a manner approved by the County, replace and restore
all paving, sidewalk, driveway or surface of any street or alley disturbed
in as good condition as before said work was commenced.
F.
In the event that at any time during the period of
a franchise the County or VDOT shall lawfully elect to alter or change
the grade of any street, alley or other public way, the affected franchisee,
upon reasonable notice by the County or the VDOT, shall remove, relay
and relocate its poles, wires, cables, underground conduits, manholes
and other telephone fixtures, provided that the County shall reimburse
a franchisee for removal or relocation of its facilities to the same
extent that the County reimburses telephone or electric utilities
under similar circumstances.
G.
No franchisee shall place any poles or other fixtures
where the same will interfere with any gas, electric or telephone
fixture, water hydrant, main or sewer, and all such poles or other
fixtures placed in any street shall be placed at the outer edge of
the sidewalk and inside the curbline, and those placed in alleys shall
be placed close to the line of the lot abutting on said alley, and
then in such a manner as not to interfere with the usual travel on
said streets, alleys and public ways.
H.
A franchisee shall, on the request of any person holding
a building moving permit issued by the County, temporarily raise or
lower its wires to permit the moving of buildings. The expense of
such temporary removal, raising or lowering of wires shall be paid
by the person requesting the same, and the franchisee shall have the
authority to require such payment in advance. The franchisee shall
be given not less than seven days' advance notice to arrange for such
temporary wire changes.
I.
Every franchisee shall have the authority to trim
trees upon and overhanging streets, alleys, sidewalks and public places
of the County so as to prevent the branches of such trees from coming
in contact with the wires and cables of the franchisee, provided that
all trimming shall be done under the supervision and direction of
the County or the VDOT and at the expense of the franchisee. The County
or VDOT specifically reserves the right to prohibit the trimming of
trees where it deems that such trimming would damage or destroy the
tree.
J.
No franchisee shall install aboveground facilities
in any portion of its service area where all public utility lines
are underground, and every franchisee shall be obligated to use its
best efforts to relocate its existing facilities underground in any
portion of its service area within 90 days after all public utility
lines in that portion of its service area have been placed underground.
This chapter shall not be construed to mean
that the County, by granting any franchise hereunder, is giving any
entity the right to use any right-of-way controlled by VDOT or by
any person other than the County. Every franchisee hereunder shall
be required to meet any and all VDOT regulations and requirements
set forth for the use of such rights-of-way controlled by VDOT and
shall be required to separately obtain from private parties and others
necessary consents, not otherwise preempted by governing federal statute
or regulation, to use any other rights-of-way not controlled by or
vested in the County prior to the installation of any cable on, under
or over the property so affected.
Except as otherwise provided by applicable law,
including, without limitation, § 15.2-2108.19 of the Code
of Virginia, no franchisee shall sell or transfer its plant or system
to another person, nor transfer any rights under a franchise to another
person, without Board approval upon such reasonable terms and conditions
as it may impose. No such sale or transfer shall thereafter be effective
until the vendee, assignee or lessee has filed in the office of the
County Administrator an instrument, duly executed, reciting the fact
of such sale, assignment or lease, accepting and agreeing to be bound
by the provisions of this chapter and a franchise granted pursuant
hereto and agreeing to perform all the conditions that may be imposed
by the Board pursuant to its consent.
A.
The right is hereby reserved by the County to adopt,
in addition to the provisions herein contained and in existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of its police power.
B.
The County shall have the right to supervise all construction
or installation work performed by a franchisee subject to the provisions
of this chapter and to make such inspections as it shall find necessary
to ensure compliance with governing ordinances.
C.
The County reserves the right to require a franchisee
to comply with the emergency alert system requirements of the FCC,
in order that emergency messages may be distributed over the franchisee's
system.
D.
All rights, rights-of-way and easements hereinabove
designated shall remain the property of the County or VDOT. Until
such time as poles or other equipment is actually installed by a franchisee,
and in the event of future removal of said poles or other equipment,
said rights shall remain vested or immediately revert to the County
or VDOT, and, in the event of removal, a franchisee's rights therein
shall be automatically canceled.
A franchisee shall provide a security fund in
the form and amount specified by its franchise agreement.
A.
A franchisee shall comply with the provisions of § 58.1-645 et seq. of the Code of Virginia, pertaining to the Virginia Communications Sales and Use Tax, as amended (the "communications tax"), and Subsections B through F of this section shall not have any effect, for so long as the Communications Tax or a successor state or local tax that would constitute a franchise fee for purposes of 47 U.S.C. § 542, as amended, is imposed on the sale of cable service by such franchisee to subscribers in the County.
B.
In the event that the communications tax is repealed and no successor state or local tax is enacted that would constitute a franchise fee for purposes of 47 U.S.C. § 542, as amended, each franchisee shall pay to the County a Franchise fee of five percent (5%) of its gross revenues, beginning on the effective date of the repeal of such tax (the "repeal date"). Beginning on the repeal date, the terms of Subsections B through F of this section shall take effect. In accordance with Title VI of the Communications Act, the twelve-month period applicable under a franchise for the computation of the Franchise fee shall be a calendar year. Such payments shall be made no later than 30 days following the end of each calendar quarter. Should a franchisee submit an incorrect amount, the franchisee shall be allowed to add or subtract that amount in a subsequent quarter, but no later than 90 days following the close of the calendar year for which such amounts were applicable; such correction shall be documented in the supporting information required under Subsection C below.
C.
Each franchise fee payment shall be accompanied by
a brief report prepared by a representative of the franchisee showing
the basis for the computation, and a breakdown by major revenue categories
(such as basic service, premium service, etc.). The County shall have
the right to reasonably request further supporting information for
each franchise fee payment.
D.
The period of limitation for recovery of any franchise
fee payable hereunder shall be five years from the date on which payment
by the grantee is due.
E.
If cable services subject to the franchise fee required under Subsection B are provided to subscribers in conjunction with other services, the franchise fee shall be applied only to the value of the cable services, as reflected on the books and records of the grantee in accordance with FCC or State Corporation Commission rules, regulations, standards or orders. Any discounts resulting from purchasing the services as a bundle shall be reasonably allocated among the respective services that constitute the bundled transaction.
F.
Audit.
(1)
The County, or such person or persons designated by
the County, shall have the right to inspect and copy records and the
right to audit and to recompute any amounts determined to be payable
under a franchise, without regard to by whom they are held. If an
audit discloses an overpayment or underpayment of franchise fees,
the County shall notify the grantee of such overpayment or underpayment
within 90 days of the date the audit was completed. The County, in
its sole discretion, shall determine the completion date for any audit
conducted hereunder. Audit completion is not to be unreasonably delayed
by either party.
(2)
Each franchisee shall be responsible for providing
to the County all records necessary to confirm the accurate payment
of franchise fees. Each franchisee shall maintain such records for
five years. The County's audit expenses shall be borne by the County
unless the audit determines the payment to the County should be increased
by more than 5% in the audited period, in which case the costs of
the audit shall be paid by the franchisee to the County within 30
days following written notice to the franchisee by the County of the
underpayment, which notice shall include a copy of the audit report.
If recomputation results in additional revenue to be paid by a franchisee
to the County, such amount shall be subject to an interest charge
of the prime rate plus 1%. If the audit determines that there has
been an overpayment by a franchisee, the franchisee may credit overpayment
against its next quarterly payment; and, the County shall waive the
interest charge on any past-due amounts that were a result of such
overpayment by the franchisee.
The County shall have access at all reasonable
hours to all of a franchisee's plans, contracts and engineering, accounting,
financial, statistical, customer and service records relating to the
cable system and its operation by the franchisee and to all other
records required to be kept hereunder.
The County may require that each applicant for
an initial franchise compensate the County for its direct, out-of-pocket
costs incurred in the award of a franchise hereunder, including the
County's expenses incurred for special counsel or consultants retained
to assist it in such award. A bill for such costs as are then determinable
may be presented to the franchisee by the County upon the franchisee's
filing of its acceptance of an initial franchise hereunder, and if
so presented shall be paid at that time, and such additional costs
as are determined as payable by the County shall thereafter be paid
within 14 days of presentment to the franchisee.
No franchise shall be deemed as granted pursuant
to this chapter unless such grant shall be approved by the Board and,
within 14 days after such approval, the applicant therefor acknowledges,
in a writing provided by the County, its acceptance of the provisions
of this chapter and any additional conditions imposed in consideration
of such grant and provides payment of all sums due hereunder and submits
all documentation required herein.
