It shall be unlawful for any person to construct, erect, install,
maintain or operate a cable system in Cecil County within any public
rights-of-way without first having been granted a franchise by the
County pursuant to this chapter.
Any franchise to provide cable service shall be valid within
all the corporate limits of Cecil County, exclusive of incorporated
municipalities, unless otherwise specified in a franchise agreement.
Upon adoption of a franchise agreement and execution thereof,
a grantee shall be bound by all the terms and conditions of this chapter
and any amendments thereto, unless otherwise provided in a franchise
agreement. A grantee shall also agree to provide all services specifically
set forth in its application, if any, and to provide cable service
within the confines of its franchise area. By its acceptance of a
franchise agreement, a grantee specifically grants and agrees that
its application is thereby incorporated by reference and made a part
of the franchise agreement. In the event of a conflict between the
application and the provisions of this chapter, that provision which
provides the greatest benefit to the County, in the opinion of the
County, shall prevail.
A.
The public rights-of-way of the County to be used by a grantee in
the operation of its cable system within the boundaries of Cecil County
are held in public trust for the benefit of the citizens and taxpayers
of Cecil County, and the grant of a franchise to a grantee is a valuable
right without which a grantee would be required to invest substantial
capital in right-of-way costs, acquisitions and maintenance. For this
reason, a grantee shall pay to the County an annual franchise fee
not to exceed 5% of the grantee's gross revenue as defined herein.
The franchise fee applicable to each franchise shall be specified
in a franchise agreement.
B.
The franchise fee shall be in addition to any other tax, fee or assessment
of general applicability or payment owed to the County by a grantee.
C.
The franchise fee shall be paid on a quarterly basis and shall be
due 45 days after the close of each calendar quarter, unless otherwise
specified in a franchise agreement. Each payment shall be accompanied
by a verified statement showing the basis for the computation and
such other relevant factors as may be required by a franchise agreement.
D.
The County shall have the right, no more frequently than once every
12 months, to inspect a grantee's gross revenue records directly
related to the calculation of the franchise fee and the right to audit
and to recompute any amounts determined to be payable under this chapter
upon 30 days' prior notice to the grantee. Any additional amount due
to the County as a result of the audit shall be paid within 30 days
following written notice to the grantee by the County, which notice
shall include a copy of the audit report. In the event of an overpayment,
grantee may deduct the amount of the overpayment from the subsequent
franchise fee payment. Unless required by law, the County shall not
disclose to any third party (other than its financial advisors in
their capacity as such) any financial information or other information
that would reasonably be regarded as confidential that the County
gains access to in connection with the provisions of this subsection.
A grantee's gross revenue records, when made available to the
County, shall not include subscriber-specific information.
E.
If an audit review shows that any franchise fees have been underpaid,
then a grantee shall pay the underpaid amount. If franchise fees have
been underpaid by 10% or more, then a grantee shall also reimburse
the County for any reasonable additional expenses and costs incurred
in connection with such underpayment.
F.
A grantee shall not bundle its cable service with non-cable service
so as to intentionally reduce or evade the imposition of the franchise
fee. The County may not interfere with a grantee's marketing
of its products or services.
G.
Unless otherwise specified in a franchise agreement, if any franchise
fee payment or recomputed amount, cost or penalty is not made on or
before the applicable dates set forth in this chapter, interest shall
be charged daily from such date at the maximum legal rate charged
by the Internal Revenue Service for late tax payments and a grantee
shall reimburse the County for reasonable additional expenses and
costs incurred by reason of the delinquent payment(s).
A.
For the purpose of operating and maintaining a cable system in the
franchise area, a grantee may erect, install, construct, repair, replace,
reconstruct and retain in, on, over, under, upon, across and along
the public rights-of-way within the franchise area such wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals,
attachments and other property and equipment as are necessary to the
operation of the cable system; provided, however, that the grantee
complies with all design, construction, safety and performance provisions
contained in this chapter, the franchise agreement, and other applicable
law.
B.
A grantee's cable system, poles, wires and appurtenances shall
be located, erected and maintained so that none of its facilities
shall endanger or interfere with the lives of persons or interfere
with the rights or reasonable convenience of property owners who adjoin
any of the public rights-of-way, or interfere with any improvements
the County may deem proper to make, or unnecessarily hinder or obstruct
the free use of the public rights-of-way of Cecil County.
C.
Before commencing construction in, above, over, under, across, through
or in any way connected with the public rights-of-way (other than
such public areas not under the County's control), a grantee
shall obtain all required permits (at the fees regularly charged therefor),
including but not limited to the written approval of the County, which
approval shall not be unreasonably withheld, delayed or conditioned.
The County may designate the location, manner and time of any construction
within the public rights-of-way. Notwithstanding the foregoing, a
grantee shall not be required to obtain a permit for individual drop
connections to subscribers, for servicing or installing pedestals,
or in instances of routine or emergency maintenance or repair to its
cable system.
D.
In case of any disturbance of pavement, sidewalk, landscaping, driveway
or other surfacing, including the surface of the public rights-of-way,
caused by a grantee or any person acting on its behalf, the grantee
shall, at its own cost and expense and in a manner and within a time
frame approved by the County, replace and restore all such paving,
sidewalk, driveway, landscaping or other surface disturbed, to a condition
comparable to that before the work was commenced and in accordance
with standards for such work set by the County.
E.
A grantee or any other person acting on its behalf shall not open or otherwise disturb the surface of any public right-of-way for any purpose whatsoever without: (i) obtaining approval to do so in the manner prescribed in Subsections C and D; and (ii) obtaining all required street opening or other permits. A grantee shall be fully responsible for the actions and activities of its agents, employees and subcontractors and shall immediately respond to and rectify any complaint resulting from an activity of any such agent, employee or subcontractor.
F.
A grantee shall restore any public right-of-way it has disturbed,
and shall, at its own cost and expense, restore and replace any other
property disturbed, damaged or in any way injured, by or on account
of its activities, to a condition comparable to the condition that
said public right-of-way was in immediately prior to the disturbance,
damage or injury.
G.
A grantee shall, at its own cost and expense, protect, support, temporarily
disconnect, relocate in the same public right-of-way, or remove from
said public right-of-way, any of its property when required to do
so by the County because of street or other public excavation; construction;
repair; regrading or grading; traffic conditions; installation of
sewers, drains, or water pipes; County-owned power or signal lines;
tracks; vacation or relocation of streets or any other type of structure
or improvement of a public agency; or any other type of improvement
necessary for the public health, safety or welfare. In the course
of planning and designing such public improvements the County may
request, and a grantee shall provide, plans, surveys and similar instruments
and information accurately identifying vertical and horizontal locations
of the underground system. When and where necessary, as determined
by the County, a grantee shall, at its expense, perform nondestructive
excavation for information on the underground system location.
H.
A grantee shall have the authority to trim trees within the public
rights-of-way at its own expense as may be necessary to protect its
wire and facilities, subject to the direction of the County or any
other appropriate governmental authority.
I.
Erection, removal and common uses of poles:
(1)
No poles or other wire-holding structures shall be erected by
a grantee without prior approval of the County with regard to location,
height, types and any other pertinent aspect. However, no location
of any pole or wire-holding structure of a grantee shall be a vested
interest and such poles or structures shall be removed or modified
by the grantee at its own expense whenever the County determines that
the public health, safety and/or welfare may be enhanced thereby.
(2)
Where poles or other wire-holding structures already existing
for use in serving the County are available for use by a grantee,
but the grantee does not make arrangements for such use or an agreement
thereof cannot be reached, the County may require the grantee to use
such poles and structures if it determines that the public convenience
would be enhanced thereby, the use of such poles and structures is
technically feasible and the terms of the use available to the grantee
are just and reasonable.
J.
If, at any time during the term of a franchise, the County shall
lawfully elect to alter or change the grade of any public right-of-way
and shall require all of the respective public utilities impacted
by such alteration to remove or relocate their facilities, a grantee,
upon reasonable notice by the County, shall remove or relocate as
necessary its poles, wires, cables, underground conduits, manholes
and other fixtures at its own expense unless the utilities are compensated,
in which case the grantee shall be similarly compensated.
K.
A grantee shall, on the request of any person holding a building
or moving permit issued by the County, temporarily raise or lower
its wires to permit the moving of buildings. The person making the
request shall provide the grantee at least 30 days' prior written
notice to arrange for such temporary wire changes and pay the expense
of such temporary removal, raising or lowering of wires, and a grantee
shall have the authority to require such payment in advance.
L.
The operations and activities of a grantee that impact public rights-of-way are further subject to the provisions of Chapter 295, Roads, Article I, Drainage, Obstructions, Alterations and Signs, of the Code of Cecil County, and any conflict between the provisions of this chapter and Chapter 295, Article I, shall be resolved in favor of the best interests of the County.
A.
The cable system construction timetable in an initial service area
shall be established in a franchise agreement.
B.
Unless otherwise provided for in a franchise agreement:
(1)
In any franchise area, a grantee shall be required to extend
its cable system pursuant to the following requirements:
(a)
No customer shall be refused service arbitrarily. A grantee
may extend the cable system as necessary within the County. To expedite
the process of extending the cable system into a new subdivision,
the County will forward to a grantee, at grantee's request, an
approved engineering plan of each such project. Subject to the density
requirements set forth in this chapter, a grantee shall commence the
design and construction process upon receipt of the final engineering
plan.
(b)
Unless otherwise provided in the franchise agreement, a grantee
must extend and make cable service available to every residential
dwelling unit within the franchise area where the minimum density
is at least 25 occupied dwelling units per mile and within one mile,
as measured in strand footage, from the nearest point of the cable
system trunk or feeder line from which a usable cable signal is obtainable.
For purposes of this section, a home shall be counted as a "dwelling
unit" if such home is located within 400 feet of the closest public
right-of-way.
(c)
A grantee shall connect all residential dwelling units that
are within 125 feet of active feeder lines not otherwise already served
by the cable system ("standard installation"). The grantee shall be
allowed to recover, from any subscriber that requests such connection,
the actual costs incurred for a residential dwelling unit connection
that exceeds the distance of a standard installation.
(2)
In areas not meeting the requirements for mandatory extension
of cable service, a grantee shall provide, upon the request of a potential
subscriber desiring service, an estimate of the costs required to
extend service to the subscriber. Service to such subscribers may
be conditioned by a grantee upon the payment or a guaranty of payment
of associated costs and fees.
(3)
Where utility easements are available, the grantee shall install
its cable system therein so as not to encroach into the public right-of-way.
In cases of new construction or property development where utilities
are to be placed underground, the County shall encourage the developer
or property owner to give grantees reasonable, prior written notice
of such construction or development, and of the particular date on
which open trenching will be available for the installation of grantee
conduit, pedestals and/or vaults and laterals to be provided at the
expense of grantee.
(4)
A grantee may propose a line extension policy which will result
in serving more residents of Cecil County than as required in this
section, in which case such line extension policy shall be incorporated
into a franchise agreement, and will be binding on the grantee.
C.
Nothing herein shall be construed to prevent a grantee from serving
areas not covered under this section upon agreement with developers,
property owners, or residents, provided that franchise fees are paid
to the County on those gross revenues.
A.
A grantee shall construct, install, operate and maintain its cable
system in a manner consistent with all applicable laws, construction
standards, governmental requirements and FCC technical standards,
as the same may be amended from time to time, including those requirements
related to radio frequency (RF) leakage. In addition, a grantee shall
provide the County, upon request, with a written report of the results
of the grantee's periodic proof-of-performance tests conducted
pursuant to FCC standards and requirements.
B.
Additional specifications.
(1)
Construction, installation and maintenance of a cable system
shall be performed in an orderly and workmanlike manner. All cables
and wires shall be installed, where possible, parallel with electric
and telephone lines in accordance with industry standards. Multiple
cable configurations shall be arranged in parallel and bundled with
due respect for engineering considerations.
(3)
In any event, a cable system shall not endanger or interfere
with the safety of persons or property in a franchise area or other
areas where a grantee may have equipment located.
(4)
Any antenna structure used in the cable system shall comply
with construction, marking and lighting of antenna structures, required
by the United States Department of Transportation.
(5)
All working facilities and conditions used during construction,
installation and maintenance of the cable system shall comply with
the applicable standards of the Occupational Safety and Health Administration.
(6)
A grantee shall maintain equipment capable of providing emergency
standby power for the head end and transport cable system for a minimum
of three hours, unless otherwise provided for in a franchise agreement.
(7)
In all areas of Cecil County where the cables, wires and other
like facilities of public utilities are placed underground, a grantee
shall place its cables, wires and other like facilities underground,
provided that such underground facilities are actually capable of
accommodating the grantee's cable and other equipment without
technical degradation of the cable system's signal quality.
C.
A grantee's repeated and verified failure to maintain specified
technical standards shall constitute a material franchise violation.
A grantee shall carry insurance in such forms and in such companies
as specified in a franchise agreement.
A.
Unless otherwise provided in a franchise agreement, a grantee shall obtain and maintain during the franchise term, at its sole cost and expense, a performance bond or a comparable security instrument running to the County with a surety company licensed to do business in the State of Maryland to ensure the grantee's faithful performance of its obligations under the franchise agreement. The performance bond or comparable security instrument shall provide that the County may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the County for the grantee's confirmed violations of the franchise agreement, after notice and opportunity to cure, in accordance with § A381-39 of this chapter. The form and amount of the performance bond or comparable security instrument shall be specified in the franchise agreement. A grantee shall not reduce, cancel or materially change said bond or comparable security instrument from the requirement contained herein without the express prior written permission of the County.
B.
Nothing herein shall be deemed a waiver of the normal permit and
bonding requirements made of all contractors working within the County's
public rights-of-way or otherwise.
A.
The County shall not at any time be liable for injury or damage occurring
to any person or property from any cause whatsoever arising out of
the construction, maintenance, repair, use, operation, condition or
dismantling of a grantee's cable system or due, in whole or in
part, to the act or omission of any person other than the County or
those persons for which the County is legally liable as a matter of
law.
B.
A grantee, under any franchise operated pursuant to this chapter,
shall agree to indemnify, hold harmless, release and defend the County,
its officers, boards, commissions, agents and employees from and against
any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, disability, losses, expenses, including reasonable
attorneys' fees and costs, or liabilities of any nature that
may be asserted by any person resulting or in any manner arising from
the negligent action or inaction of the grantee in constructing, operating,
maintaining, repairing or removing the cable system, in carrying on
the grantee's business or operations in the County or in exercising
or failing to exercise any right or privilege granted by the franchise.
This indemnity shall apply, without limitation, to any action or cause
of action for invasion of privacy, defamation, antitrust, errors and
omissions, theft, fire, violation or infringement of any copyright,
trademark, trade names, service mark or patent or any other right
of any person, firm or corporation, whether or not any act or omission
complained of is authorized, allowed or prohibited by this chapter
or any franchise agreement, but shall not include any claim or action
arising, in whole or in part, out of the negligent actions or inactions
of County officers, employees or agents or related to any County programming
or other access programming for which the grantee is not legally responsible.
C.
In the event any action or proceeding shall be brought against the
County or any of its officers, boards, commissions, agents or employees
by reason of any matter for which the County is indemnified hereunder,
the grantee shall, upon timely notice from the County (a period of
time provided by law that allows the grantee to take action to avoid
entry of a default judgment and does not prejudice the grantee's
ability to defend the claim or action) and at the grantee's sole
cost and expense, resist and defend the same; provided, however, that
the grantee shall not admit liability in any such matter on behalf
of the County or any of its officers, boards, commissions, agents
or employees without the written consent of the County Attorney or
the County Attorney's designee.
D.
The County shall give a grantee prompt notice of the making of any
claim or the commencement of any action, suit, or other proceeding
subject to indemnification pursuant to this section. Nothing herein
shall be deemed to prevent the County from cooperating with a grantee
and participating in the defense of any litigation through the County
Attorney.
E.
Nothing in any franchise agreement entered into pursuant to this
chapter shall be intended to express or imply a waiver of the statutory
provisions, of any kind or nature, as set forth in state statutes,
including the limits of liability of the County as exists presently
or may be amended from time to time.
A.
A grantee shall not deny service or access or otherwise discriminate
against subscribers, channel users, PEG users or any other citizen
of Cecil County on the basis of race, color, religion, national origin,
disability or gender. A grantee shall comply at all times with all
applicable law relating to nondiscrimination, which are hereby incorporated
and made part of this chapter by reference.
B.
A grantee shall strictly adhere to the equal employment opportunity
requirements of the FCC, federal, state and local regulations, as
amended from time to time.
C.
A grantee shall, at all times, comply with the privacy requirements
of federal and state law.
D.
A grantee is required to make all cable system services available
to all residential dwellings and dwelling units throughout the franchise
area which meet the minimum housing density requirements set forth
in this chapter or in a franchise agreement.
E.
It shall be the right of all persons to receive all available services
provided on the cable system so long as such person's financial
or other obligations to the grantee are satisfied; provided, however,
that the grantee may deny service for good cause, including but not
limited to theft of grantee's services, vandalism of its property
or abuse or harassment of its representatives. Nothing contained herein
shall prohibit the grantee from offering bulk discounts, promotional
discounts, package discounts or other such pricing strategies as part
of its business practice, subject to the provisions of this chapter.
The grantee shall assure that access to cable services is not denied
to any group of potential residential cable subscribers because of
the income of the residents of the local area in which such group
resides.
Minimum public notice of any public meeting relating to a franchise
shall be made as prescribed by the County.
A.
A grantee shall fully cooperate in making available at reasonable
times, and the County shall have the right to inspect, where reasonably
necessary to the enforcement of a franchise and upon reasonable prior
written notice, books, records, reports, maps, plans and other like
materials of the grantee directly applicable to the cable system in
the County.
B.
The following records and/or reports are to be made available to
the County upon 30 days' prior written request:
(1)
Periodic preventive maintenance reports;
(2)
Any copies of FCC Form 396-C, Multi-Channel Program Distributor
EEO Program Annual Report (or successor form), or any supplemental
forms related to equal opportunity or fair contracting policies;
(3)
A record of monthly service calls which will indicate the nature
of each written subscriber inquiry/complaint received in the past
12 months, the date it was received, the disposition of the inquiry/complaint
and the date of resolution; and
(4)
Periodic construction update reports, during that period of
time a construction project is in progress and/or the submission of
strand maps (i.e., maps showing the location of the cable system in
relation to the streets and roadways in the County).
C.
Upon request, a grantee shall file annually with the County, no later
than 120 days after the end of the grantee's fiscal year, a copy
of a gross revenues statement certified by an officer of the grantee.
A.
Upon written request of not less than 30 days' prior written notice
to a grantee, the County may conduct evaluation and review sessions
during the term of a franchise agreement, but not more than once every
three years; provided, however, that special evaluation and review
sessions may be held at any time during the franchise term at the
request of the County or a grantee.
B.
All scheduled evaluation and review sessions shall be open to the
public and announced in a newspaper of general circulation in accordance
with legal notice standards applicable to public hearings. The County,
in its discretion, may also require a grantee to notify its subscribers
of all such sessions by announcements on at least one channel of the
cable system during a specified time frame preceding each session.
During any such public performance evaluation session in which a grantee
chooses to participate, grantee shall be afforded due process and
a full opportunity to be heard. This shall include the ability to
introduce evidence, to question witnesses and to respond to any notice
of technical or legal shortcoming in accordance with the standards
of a fair hearing applicable to administrative or public hearings
pursuant to County, state and/or federal law.
C.
During an evaluation and review session, a grantee may choose not
to participate but shall fully cooperate with the County and shall
provide without cost such reasonable information and documents as
the County may request to perform the evaluation and review in accordance
with applicable law.
A.
In any franchise agreement entered into pursuant to this chapter,
the County shall agree to timely advise a grantee of any request by
any person, other than a County official or County employee in the
performance of such County official's or County employee's
duties, seeking to review or obtain such documents. In the event that
the County determines that such documents are disclosable under the
Maryland Public Information Act ("MPIA"),[1] the County shall timely advise the grantee and allow the
grantee to challenge the disclosure of such documents at the grantee's
own expense. If the grantee's challenge of the disclosure is
unsuccessful, the grantee, in addition to its own expenses, shall
indemnify, defend and hold harmless the County, and its officials
and employees, of and from all costs and damages related to the challenge,
including reasonable attorneys' fees. If the County determines
that such documents are not disclosable under the MPIA, the County
shall not disclose such documents, shall advise the requester of the
basis for such nondisclosure and requester's rights under the
MPIA and shall advise timely the grantee of any challenge by the requester
to such action.
[1]
Editor's Note: See State Government Article, Title 10, Subtitle
6, § 10-611 et seq., Annotated Code of Maryland.
B.
In any franchise agreement entered into pursuant to this chapter,
a grantee and the County shall each agree to provide the other, upon
written request, with copies of all pleadings, court filings and nonprivileged
correspondence relating to the defense of any action brought to disclose
documents under the MPIA.
A.
It shall be the right of all subscribers to continue receiving cable service, consistent with the provisions of § A381-19. If a grantee elects to rebuild, modify or sell its cable system, or the County gives notice of intent to terminate or fails to renew a franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances.
B.
If there is a change of franchise, or if a new operator acquires
the cable system, a grantee shall cooperate with the County, new grantee
or operator in maintaining continuity of service to all subscribers.
During this transition period, a grantee shall be entitled to the
revenues for any period during which it operates the cable system,
and shall be entitled to reasonable costs for its services until it
no longer operates the cable system.
C.
Unless otherwise provided for in the franchise agreement, if a grantee
fails to operate a cable system for 14 consecutive days without prior
approval of the County or without just cause, the County may, at its
option, operate the cable system or designate an operator until such
time as the grantee restores service under conditions acceptable to
the County or a permanent operator is selected. If the County is required
to fulfill this obligation for a grantee, the grantee shall reimburse
the County for all reasonable costs or damages in excess of revenues
from the cable system received by the County that are the result of
the grantee's failure to perform.
A.
The Director of Administration, or his designee, is designated as
having primary responsibility for the continuing administration of
a franchise and implementation and oversight of complaint procedures.
B.
Unless otherwise provided in the franchise agreement, a grantee shall
maintain, during the term of a franchise and any renewal thereof,
a central office for the purpose of receiving and resolving all complaints
regarding the quality of service, equipment malfunctions, and similar
matters. The office must be reachable by a local, toll-free telephone
call and by electronic mail.
C.
As subscribers are connected or reconnected to a grantee's cable
system, the grantee shall, by appropriate means, such as a card, brochure
or electronic mail, furnish information concerning the procedures
for making inquiries or complaints, including the address, local telephone
number and Internet website for customer service.
D.
To the extent permitted by applicable law, the County shall have
the right and authority to require a grantee to test, analyze and
report on the performance of its cable system, provided that the County
shall not require a grantee to test the cable system as a whole, or
any specific part thereof, more than once during any calendar year,
unless a test shows that the cable system or such a specific part
fails to meet relevant performance specifications. A grantee shall
fully cooperate with the County in performing such testing and shall
prepare results and a report, if requested, within 45 days after notice.
(1)
Such report shall include the following information:
(a)
The nature of the written complaint or problem which precipitated
the tests;
(b)
What cable system component was tested;
(c)
The equipment used and procedures employed in testing;
(d)
The method, if any, in which such complaint or problem was resolved;
and
(e)
Any other information pertinent to the tests and analysis which
may be required.
(2)
A grantee's periodic proof-of-performance tests conducted
pursuant to FCC standards and requirements may satisfy a test or report
required by the County under this section.
(3)
The County may require an independent review of a performance
test, with the independent reviewer selected by the County to review
the cable system in cooperation with a grantee. Should such a test
prove that the grantee failed to meet a technical standard, the grantee
shall bear the cost of such independent observer. Should such a test
prove that the grantee met the technical standard(s), the County shall
bear the cost of such test.
