[HISTORY: Adopted by the County Commissioners of Kent County 3-19-2013 by Bill No.
2-2013. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Kent County
Cable Television Franchise Act" (hereinafter "chapter"). The purposes
of this chapter are to establish the terms and conditions under which
a cable television or open video system occupying the public rights-of-way
must operate within Kent County, Maryland (which may hereinafter be
referred to as "County," "franchising authority" or "grantor"); to
provide for the payment of a franchise fee to the County for use of
public rights-of-way and the costs associated with administering and
regulating the system; and to enhance the County's authority
to grant a cable television system franchise while managing the public
rights-of-way.
For the purpose of this chapter and any franchise agreement
entered into hereunder, the following terms, phrases, words and their
derivations shall have the meanings given herein. 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. All capitalized terms used in the definition of any
other term shall have their meaning as otherwise defined in this section.
The words "shall" and "will" are mandatory, and "may" is permissive.
Words not defined shall be given their common and ordinary meaning.
Any entity, including a nonprofit community access corporation,
designated by the County to perform any or all of the following functions:
Each person who falls into one or more of the following categories:
Each person having a controlling interest in a grantee;
Each person in which a grantee has a controlling interest; or
Each person, directly or indirectly, controlling, controlled
by or under common control with a grantee, provided that "affiliate"
shall in no event mean any creditor or a grantee solely by virtue
of its status as a creditor and which is not otherwise an affiliate
by reason of owning a controlling interest in, being owned by or being
under common ownership, common management or common control with a
grantee.
A binding contract granting a franchise pursuant to this
chapter, and any amendments, exhibits or appendices thereto, containing
the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
Any service tier, which includes the retransmission or delivery
of local television broadcast signals, origination channels and public,
educational and governmental access channels, covered by a regular
monthly charge paid by all subscribers to a particular service tier.
In the event that the definition of "basic cable television service"
is amended by an act of the United States Congress, under the Cable
Act or otherwise, or by the FCC, then the definition under this section
shall be amended to conform thereto.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992,
and the Telecommunications Act of 1996, and as may be amended from
time to time.[1]
The one-way transmission to subscribers of video programming
or other programming services; and
Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service, as
further defined by an act of the United States Congress, under the
Cable Act or otherwise, or by the FCC.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, transmission and control
equipment that is designed to provide cable television service which
includes video programming and which is provided to multiple subscribers
within Kent County, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
rights-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Cable Act, except that
such facility shall be considered a cable system if such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services; or
Any facilities of any electric utility used solely for operating
its electric utility system.
A reference to a cable system in this chapter refers to any
part of such system, including, without limitation, converters. The
foregoing definition of "cable system" shall not be deemed to circumscribe
or limit the authority of the County to regulate or franchise the
activities of any other communications system or provider of communications
services to the full extent permitted by law.
A portion of the electromagnetic frequency spectrum that
is used in a cable system and which is capable of delivering a television
channel, as further defined by an act of the United States Congress,
under the Cable Act or otherwise, or by the FCC.
Actual working control or ownership of a system in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any person or entity (except underwriters
during the period in which they are offering securities to the public)
of 25% or more of a cable system or a franchise under which the system
is operated. A change in the control or controlling interest of any
entity which has control or a controlling interest in a grantee shall
constitute a change in the control or controlling interest of the
system under the same criteria. Control or controlling interest, as
used herein, may be held simultaneously by more than one person or
entity.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and by an appropriate channel selector also permits
a subscriber to view more than 12 channels delivered by a system at
designated converter dial locations.
The County Commissioners of Kent County, Maryland, and any
agency or department thereof. The County may also be referenced as
"franchising authority" or "grantor."
The administrative head of the County, or his designee.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
A nonexclusive authorization, or renewal thereof, evidenced
by a written franchise agreement, granted pursuant to this chapter
and applicable law, to construct, operate and maintain a cable system
within the public rights-of-way to provide cable service within all
or a specified area of Kent County. The term "franchise" includes
the franchise agreement. Any such authorization, in whatever form
granted, shall not mean or include any license or permit required
for the privilege of transacting and carrying on a business within
Kent County as required by state or local law, ordinances or regulations,
or for attaching devices to poles or other structures, whether owned
by the County or a private entity, or for excavating or performing
other work in or along the public rights-of-way.
The geographic area within Kent County that a grantee is
authorized to serve by its franchise.
The fee imposed by the County pursuant to § 76-13 of this chapter. The term "franchise fee" does not include:
Any tax, fee or assessment of general applicability (including
any such tax, fee, or assessment imposed on both utilities and cable
operators);
Capital costs that are required by a franchise agreement to
be incurred by the cable operator for public, educational or governmental
access facilities; or
Requirements or charges incidental to the awarding or enforcing
of a franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties or liquidated damages.
A person or entity to whom or which a franchise is granted
by the County pursuant to this chapter, along with the lawful successors
or assigns of such person or entity.
All revenue, as determined in accordance with generally accepted
accounting principles, that is derived by the grantee and by each
affiliate from the operation of the cable system to provide cable
services.
Gross revenue shall include, to the extent it is received by
the grantee, revenue from any other person, including, without limitation,
leased or PEG channel programmers, that is derived from the operation
of the cable system to provide cable services.
Gross revenue shall also include, by way of example and without
limitation:
The fair market value of any nonmonetary (i.e., barter) transactions
between the grantee and any affiliate, which fair market value shall
not be less than the customary prices paid in connection with equivalent
transactions conducted with persons who are not affiliates and which
would, if received in the form of cash, otherwise be of a kind or
character constituting gross revenue;
Revenue received by the grantee which represents or can be attributed
to a subscriber fee or a payment for the use of the cable system for
the sale of merchandise through any cable service distributed over
the cable system;
Franchise fees received from subscribers;
Fees received from subscribers to support PEG channels;
To the extent allowed by applicable law, revenue generated from
the provision of cable modem service and voice over Internet Protocol
(Voip) service;
Any revenue generated by the grantee or by any affiliate through
any means which has the effect of avoiding the payment of compensation
that would otherwise be paid to the grantor for the franchise granted
in this agreement;
Any revenue from subscriber equipment sold or leased by the
grantee or an affiliate;
Late fees and administrative fees;
Revenue derived from program guides;
Revenue derived from forfeited deposits;
Revenue derived from installation, disconnection, or service
call fees;
Revenue derived from game channels;
Studio rental, rental of or charges for production equipment,
and personnel fees;
Revenue derived from commissions;
Any actual bad debt that is written off but subsequently collected
(Such bad debt shall be included as gross revenue for the period in
which it is collected); and
Other revenues that may be posted in the general ledger as an
offset to an expense account.
Gross revenue shall also include all advertising revenue which
is derived, directly or indirectly, from or in connection with the
sale of advertising on the cable system, whether by the grantee or
whether collected by an affiliate or any other person for the grantee.
If the advertising revenue received from the affiliate is only net
advertising revenue, advertising revenues from an affiliate shall
be grossed up as if the grantee had received the advertising revenue
directly. Notwithstanding the preceding sentence, standard and reasonable
commissions retained by a regional interconnect that is an affiliate
may be excluded from gross revenue.
Gross revenue shall not include:
Any compensation awarded to the grantee based on the grantor's
condemnation of property of the grantee;
The revenue of any person, including, without limitation, a
supplier of programming to the grantee, to the extent that such revenue
is also included in gross revenue of the grantee;
The revenue of the grantee or any other person which is generated
directly from the sale of any merchandise through any service distributed
over the cable system, other than that portion of such revenue which
represents or can be attributed to a subscriber fee or a payment for
the use of the cable system for the sale of such merchandise, for
example, the portion of such payment attributable to a commission
for the grantee or an affiliate, which portion shall be included in
gross revenue;
Taxes imposed by law on subscribers which the grantee is obligated
to collect, it being acknowledged that franchise fees under this agreement
are not considered taxes;
Amounts collected by the grantee from subscribers on behalf
of leased or PEG channel programmers, other than affiliates, to the
extent that all of the amounts collected, in excess of the amounts
deducted and paid to the grantor, are passed on by the grantee to
such programmers;
The revenue of any affiliate which represents standard and reasonable
amounts paid by the grantee to the affiliate for ordinary and necessary
business expenses of the grantee, including, without limitation, professional
service fees and insurance or bond premiums;
Advertising commissions deducted by advertising agencies, other
than an agency which is an affiliate, before advertising revenues
are paid over to the grantee;
To the extent consistent with generally accepted accounting
principles, consistently applied, actual bad debt write-offs taken
in the ordinary course of business;
Amounts recovered by the grantee for theft or loss of portions
of the cable system, which amounts were previously written off;
Investment income; and
Payments received by the grantee or an affiliate that represent
a reimbursement for work performed by the grantee or its agents on
behalf of a contractor or third party, where payment for such work
would not normally be considered gross revenue based on the nature
of the work performed.
A grantee who has not previously been granted a franchise
by the County.
All areas in Kent County that receive or will receive cable
service initially, as set forth in any franchise agreement.
The connection of the system to subscribers' terminals,
and the provision of cable service.
As applied to a grantee, shall mean those hours during which
similar businesses in Kent County are open to serve customers. In
all cases, normal business hours shall include some evening hours
at least one night per week, and some weekend hours.
Those service conditions which are within the control of
a grantee. Those conditions which are not within the control of a
grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages and severe
or unusual weather conditions. Conditions which are ordinarily within
the control of the grantee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods and maintenance or upgrade of the cable system.
The complete loss of picture, sound, or both, on multiple
channels from a common problem which affects multiple customers on
the system.
Any natural person or any partnership, association, joint-stock
company, joint venture, domestic or foreign corporation, stock or
nonstock corporation, limited-liability company, professional limited-liability
company, or organization of any kind, or any lawful successor thereto
or transferee thereof. Such term does not include the County.
The surface of all rights-of-way and the space above and
below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the County for the purpose of public
travel and shall include other similar easements or rights-of-way
as shall be now held or hereafter held by the County which shall,
within their proper use and meaning, entitle a grantee to the use
thereof for the purposes of installing poles, wires, cable, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and pertinent to
a cable system.
The loss of either picture or sound, or both, on one or more
channels, affecting at least one subscriber on the system.
The State of Maryland.
Any person lawfully receiving cable service provided by a
grantee by means of or in connection with the cable system and who
pays the charges therefor, except such persons or entities authorized
to receive cable service without charge as provided for in a franchise
agreement.
A person utilizing a cable television system channel for
purposes of production or transmission of material to subscribers,
as contrasted with receipt thereof in a subscriber capacity.
[1]
Editor's Note: See 47 U.S.C. § 609 et seq.
It shall be unlawful for any person to construct, install or
operate a cable television system in Kent County within any public
right-of-way without a properly granted franchise issued pursuant
to the provisions of this chapter.
Any franchise granted by the County shall grant to a grantee
the nonexclusive right and privilege to erect, construct, operate
and maintain in, upon and along, across, above, over and under the
public rights-of-way, now in existence and as may be created or established
during a franchise term, any poles, wires, cable, underground conduits,
manholes and other television conductors and fixtures necessary for
the maintenance and operation of a cable system to provide cable service
within a franchise area. A franchise granted by the County does not
expressly or implicitly authorize a grantee to provide service to
or install a cable system on private property without the owner's
consent (except for use of compatible easements pursuant to the Cable
Act, or to use publicly or privately owned conduits or any other public
property without a separate agreement with the owners thereof).
A.
Upon adoption of any franchise agreement and execution thereof by
a grantee, the grantee agrees to be bound by all the terms and conditions
contained in this chapter and any amendments thereto, unless otherwise
provided in the franchise agreement.
B.
Any grantee also agrees to provide all services specifically set
forth in its application, if any, and to provide cable service within
the confines of its franchise area; and by its acceptance of a franchise,
a grantee specifically grants and agrees that its application is thereby
incorporated by reference and made a part of the franchise. 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.
Any franchise to provide cable service shall be valid within
all the unincorporated territorial limits of Kent County, Maryland,
unless otherwise specified in the franchise agreement.
A franchise and the rights, privileges and authority granted
shall take effect and be in force as set forth in the franchise agreement
and shall continue in force and effect for a term of no longer than
15 years. Such franchise shall be nonexclusive and revocable.
Franchise renewals shall be conducted in accordance with applicable
law, including, but not necessarily limited to, the Cable Act, as
amended. Grantor and grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise.
A.
In accepting a franchise, a grantee shall acknowledge that its rights
thereunder are subject to the police powers of the County to adopt
and enforce general public local laws pursuant to applicable law and
necessary to the health, safety and welfare of the public. Grantees
shall agree to comply with all applicable laws, ordinances, policies,
codes, rules and regulations enacted or adopted by the County pursuant
to such power.
B.
Any conflict between the provisions of this chapter and any other
present or future lawful exercise of the County's police powers
shall be resolved in favor of the latter, except that any such exercise
that is not of general application in Kent County, or applies exclusively
to the grantee or cable television systems, which contain provisions
inconsistent with the grantee's franchise agreement, shall prevail
only if upon such exercise the County finds an emergency exists constituting
a danger to health, safety, property or general welfare or such exercise
is mandated by law.
C.
In the event that the state or federal government discontinues preemption
in any area of cable communications over which it currently exercises
jurisdiction in such manner as to expand rather than limit municipal
regulatory authority, the County may, if it so elects, adopt rules
and regulations in these areas to the extent permitted by law.
The County shall have the right, during the term of a franchise,
to install and maintain, free of charge, upon the poles of a grantee
any wire or pole fixtures that do not unreasonably interfere with
the cable television system operations of the grantee. The County
shall indemnify and hold harmless, to the extent permitted by law,
the grantee from any claim that might arise due to or as a result
of such usage.
Costs to be borne by an initial grantee shall include, but shall
not be limited to, any reasonable charges incidental to the awarding
or enforcing of an initial grantee's franchise, all costs of
publications of notices prior to any public meeting provided for pursuant
to this chapter and any costs not covered by application fees but
incurred by the County in its study, preparation of proposal documents,
evaluation of all applications and examinations of the applicants'
qualifications. Any payments made to the County pursuant to this section
shall not be considered franchise fees.
A.
Any person desiring an initial franchise for a cable television system,
the renewal of a franchise or a modification of a franchise shall
file a written application with the County. The application shall
be in such form, and under such terms and conditions, as determined
by the County.
B.
To be acceptable for filing, a signed original of the application
shall be submitted, together with 10 copies. The application must
be accompanied by any required application filing fee, conform to
any applicable request for proposals (RFP), and contain all required
information. All applications shall include the names and addresses
of persons authorized to act on behalf of all applicants with respect
to the application.
C.
All applications accepted for filing shall be made available by the
County for public inspection.
D.
A person may apply for an initial franchise or a franchise renewal by submitting an application containing the information required in § 76-12E. Upon receipt of such an application, the County may either evaluate the application pursuant to § 76-12D(3), conducting such investigations as it deems necessary, or issue a request for proposals (RFP), after conducting, if necessary, a proceeding to identify the future cable-related needs and interests of the community. Any such RFP shall be mailed to the person requesting its issuance and made available to any other interested person. The RFP may contain a proposed franchise agreement.
(1)
An applicant shall respond to a RFP by filing an application within the time directed by the County, providing the information and material set forth in § 76-12E. Each applicant shall follow the procedures, instructions and requirements set forth in the RFP. Any applicant that has already filed materials pursuant to § 76-12D(2) herein need not refile the same materials with its RFP response, but must amplify its applications to include any additional or different materials required by the RFP. The County or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(2)
Notwithstanding the provisions of this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in § 76-12E and requesting an evaluation of that application pursuant to § 76-12D(3). Prior to evaluating that application, the County may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in § 76-12D(3) and may seek additional applications.
(3)
In evaluating an application for a franchise or a renewal thereof,
the County shall consider, among other things, the following factors:
(a)
The extent to which the applicant has substantially complied
with the applicable law and the material terms of any existing franchise
for the County.
(b)
Whether the quality of the applicant's service under any
existing franchise in Kent County, including signal quality, response
to customer complaints, billing practices, but without regard to the
mix and quality of cable services or other services provided over
the system, has been reasonable in light of the needs and interests
of the communities served.
(c)
Whether the applicant has the financial, technical and legal
qualifications to provide cable service.
(d)
Whether the application satisfies any minimum requirements established
by the County and is otherwise reasonable to meet the future cable-related
needs and interests of the community, taking into account the cost
of meeting such needs and interests.
(e)
Whether, to the extent not considered under § 76-12D(3)(d), the applicant will provide adequate PEG access channel capacity, facilities or financial support.
(f)
Whether issuance of a franchise is warranted in the public interest
considering the immediate and future effect on the public rights-of-way
and private property that would be used by the cable system, including
the extent to which installation or maintenance as planned would require
replacement of property or involve disruption of property, public
services or use of the public rights-of-way; the effect of granting
a franchise on the ability of cable to meet the cable-related needs
and interests of the community; and the comparative superiority or
inferiority of competing applications.
(g)
What effects a grant of the franchise may have on competition
in the delivery of cable service in Kent County.
(4)
If the County finds that it is in the public interest to issue or
renew a franchise considering the factors set forth in this section,
and subject to the applicant's entry into an appropriate franchise
agreement, it shall proceed with the grant or renewal of franchise.
If the County denies a franchise or renewal thereof after consideration
of the factors set forth in this section, it will issue a written
decision explaining the denial. The County also may grant or deny
a request for a franchise or renewal thereof based on its review of
an application without further proceedings and may reject any application
that is incomplete or fails to respond to an RFP. This chapter is
not intended and shall not be interpreted to grant any applicant or
existing franchisee standing to challenge the issuance of a franchise
to another person.
(5)
Prior to rendering a final decision whether or not to issue or renew
a franchise pursuant to this section, the County shall provide public
notice of the franchise application; the County may hold one or more
public hearings or implement other procedures under which comments
from the public and/or the applicant on an application may be received;
and in the event of a renewal application where the franchise may
not be renewed, the County shall provide a preliminary assessment
to the franchisee seeking renewal and shall afford that applicant
an opportunity to respond to the preliminary assessment.
E.
An RFP for the grant of an initial franchise shall require, and any
such application shall contain, at a minimum, the following information:
(1)
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 an ownership interest in the applicant and
affiliates of the applicant and all persons with 5% or more ownership
interest in the applicant and its affiliates; the persons who control
the applicant and its affiliates; and all officers and directors of
the applicant and its affiliates.
(2)
A demonstration of the applicant's technical ability to construct
and/or operate the proposed cable system, including identification
of key personnel.
(3)
A demonstration of the applicant's legal qualifications to construct
and/or operate the proposed cable system.
(4)
A statement prepared by a certified public accountant regarding the
applicant's financial ability to complete the construction and
operation of the cable system proposed.
(5)
A description of the applicant's prior experience in cable system
ownership, construction and operation, and identification of communities
in which the applicant or any of its principals have, or have had,
a cable franchise or any interest therein.
(6)
Identification of the area of Kent County to be served by the proposed
cable system, including a description of the proposed franchise area's
boundaries.
(7)
A detailed description of the physical facilities proposed, including
channel capacity, technical design, performance characteristics, headend
and access facilities.
(8)
Where applicable, a description of the construction of the proposed
system, including an estimate of plant mileage and its location; the
proposed construction schedule; a description, where appropriate,
of how services will be converted from existing facilities to new
facilities; and information on the availability of space in conduits,
including, where appropriate, an estimate of the cost of any necessary
rearrangement of existing facilities.
(9)
The proposed rate structure, including projected charges for each
service, installation, converters and all other proposed equipment
or service.
(10)
A demonstration of how the applicant will reasonably meet the
future cable-related needs and interests of the community, including
descriptions of how the applicant will meet the needs described in
any recent community needs assessment conducted by or for the County,
and how the applicant will provide adequate PEG access channel capacity,
facilities or financial support to meet the community's needs
and interests.
(11)
Pro forma financial projection for the proposed franchise term,
including a statement of projected income, and a schedule of planned
capital additions, with all significant assumptions explained in notes
or supporting schedules.
(12)
If the applicant proposes to provide cable service to an area
already served by an existing cable franchisee, 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 system.
(13)
Any other information that may be reasonably necessary to demonstrate
compliance with the requirements of this chapter.
(14)
Any additional information that the County may request of the
applicant that is relevant to the County's consideration of the
application.
(15)
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments and certifying
that the application meets all federal and state law requirements.
(16)
The County may, at its discretion and upon request of an applicant,
waive, in writing, the provision of any of the information required
by this section.
F.
An application for modification of a franchise agreement shall include,
at minimum, the following information:
(1)
The specific modification requested;
(2)
The justification for the requested modification, including the impact
of the requested modification on subscribers and others, and the financial
impact on the applicant if the modification is approved or disapproved,
demonstrated through, inter alia, submission of financial pro formas;
(3)
A statement whether the modification is sought pursuant to § 625
of the Cable Act, and, if so, a demonstration that the requested modification
meets the standards set forth therein;
(4)
Any other information that the applicant believes is necessary for
the County to make an informed determination on the application for
modification; and
(5)
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
and certifying that the application is consistent with all federal
and state law requirements.
G.
An applicant shall be notified of any public hearings held in connection
with the evaluation of its application and shall be given an opportunity
to be heard.
H.
Filing fees. A nonrefundable application fee of $3,000 shall accompany any initial franchise application. A nonrefundable application fee of $1,000 shall accompany any renewal application or modification application, unless otherwise stipulated by the County. In addition, the County may require an applicant to reimburse the County for its reasonable out-of-pocket expenses in considering the application, including consultants' fees. Payments made by a grantee hereunder shall not be deemed to be franchise fees within the meaning of the Cable Act, and such payment shall not be deemed to be involuntary payment chargeable against, or part of, the compensation to be paid to the County by the grantee pursuant to § 76-13 of this chapter and applicable provisions of a franchise agreement. The purpose of the application fees is to cover costs incidental to processing and evaluating the application or enforcement of the franchise.
A.
For the reason that the streets and public rights-of-way of the County
to be used by a grantee in the operation of its cable system within
the boundaries of Kent County are valuable public properties acquired
and maintained by the County at great expense to its taxpayers, and
that 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 and acquisitions, the grantee shall pay to the
County an amount equal to 5% of the grantee's gross revenue,
unless otherwise provided for in the franchise agreement. If the statutory
five-percent limitation on franchise fees is raised or the federal
statute deletes the franchise fee limitation entirely, then the franchise
fee may be subject to renegotiation.
B.
This payment 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 and any other costs or penalties assessed shall
be payable quarterly on a calendar year basis to the County, and a
grantee shall file a complete and accurate verified statement of all
gross revenues within 45 days after the quarter as established between
the County and the grantee.
D.
The County shall have the right, no more frequently than biannually,
to inspect a grantee's income records 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. 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 income records, when made available
to the County, shall not include subscriber-specific information.
E.
If any franchise fee payment or recomputed amount, cost or penalty
is not made on or before the applicable dates heretofore specified,
interest shall be charged daily from such date at the legal maximum
rate charged by the United States Internal Revenue Service for late
tax payments, and a grantee shall reimburse the County for any reasonable
additional expenses and costs incurred by the County by reason of
the delinquent payment(s).
All notices from a grantee to the County pursuant to this chapter
shall be to the County Administrator's office. Every grantee
shall maintain with the County, throughout the term of a franchise,
an address for service of notices by mail. A grantee shall maintain
a central office to address any issues relating to operating under
this chapter.
Minimum public notice of any public meeting relating to a franchise
shall be made as prescribed by the County.
A.
Within 15 days after the award of a franchise, a grantee shall deposit
with the County an irrevocable letter of credit from a financial institution,
a security deposit or a surety bond, in form and amounts as set forth
in the franchise agreement. The County Attorney shall approve the
form and content of such letter of credit, security deposit or surety
bond. These instruments shall be used to insure the faithful performance
of a grantee of all provisions of this chapter and the franchise and
compliance with all orders, permits and directions of any agency,
commission, board, department, division or office of the County having
jurisdiction over its acts or defaults under this chapter and the
franchise, and the payment by a grantee of any claims, liens, and
taxes due the County which arise by reason of the construction, operation
or maintenance of a cable system.
B.
The letter of credit, security deposit or surety bond shall be maintained
at the amount set forth in the franchise agreement for the entire
term of a franchise, even if amounts have to be withdrawn pursuant
to this chapter or the franchise agreement.
C.
If a grantee fails to pay to the County any compensation within the
time fixed under this chapter or in the franchise agreement, or fails
to repay the County, within 30 days, any damages, costs or expenses
which the County is compelled to pay by reason of any act or default
of the grantee in connection with this chapter or a franchise, or
fails, after 30 days' notice of such failure by the County, to comply
with any material provision of this chapter or the franchise which
the County reasonably determines can be remedied by demand on the
letter of credit, security deposit or surety bond, the County may
immediately request payment of the amount thereof, with interest and
any penalties, from the letter of credit, surety bond or security
deposit. Upon such request for payment, the County shall notify the
grantee of the amount and date thereof.
D.
The rights reserved to the County with respect to the letter of credit,
security deposit or surety bond are in addition to all other rights
of the County, whether reserved by this chapter or authorized by law,
and no action, proceeding or exercise of a right with respect to such
letter of credit, surety bond or security deposit shall affect any
other right the County may have.
E.
A letter of credit shall contain the following endorsement: "It is
hereby understood and agreed that this letter of credit, security
deposit or surety bond may not be canceled by the surety, nor the
intention not to renew be stated by the surety, until 30 days after
receipt by the County Commissioners of Kent County, by registered
mail, of a written notice of such intention to cancel or not to renew."
Upon receipt of the thirty-day notice, this shall be construed as
a default granting the County the right to call on the surety for
either the security deposit, letter of credit or surety bond, unless
a grantee obtains a substitute letter of credit, security deposit
or surety bond.
F.
The County may at any time during the term of the franchise waive
its requirement that the grantee maintain a letter of credit, surety
bond or security deposit. The invitation to waive the requirement
can be initiated by the County or a grantee.
A.
Within 30 days after the award of a franchise to an initial grantee,
such grantee shall file with the County a performance bond in the
amount of not less than 50% of costs to install the system contained
in the new application in favor of the County. This bond shall be
maintained throughout the construction period and until such time
as determined by the County, unless otherwise specified in a franchise
agreement.
B.
If a grantee fails to comply with any law, ordinance or resolution
governing a franchise or fails to well and truly observe, fulfill
and perform each term and condition of the franchise as it relates
to the conditions relative to the construction or upgrade of a cable
system, there shall be recoverable, jointly and severally, from the
principal and surety of the bond, any damages or loss suffered by
the County as a result, including the full amount of any compensation,
indemnification or cost of removal or abandonment of any property
of the grantee, plus a reasonable allowance for attorneys' fees,
including the County's legal staff, and costs, up to the full
amount of the bond.
C.
The County shall, upon completion of construction of the initial
service area, waive or reduce the requirement of a grantee to maintain
the bond. However, the County may require a performance bond to be
posted by the grantee for any construction subsequent to the completion
of the initial service areas in a reasonable amount and upon such
terms as determined jointly by the County and grantee.
D.
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be canceled by the surety, nor the
intention not to renew be stated by the surety, until 30 days after
receipt by the County Commissioners of Kent County, by registered
mail, of a written notice of such intent to cancel and not to renew."
Upon receipt of a thirty-day notice, this shall be construed as a
default granting the County the right to call in the bond.
E.
The County may, at any time during the term of a franchise, waive
the requirement that the grantee maintain a performance bond. The
invitation to waive the requirement can be initiated by the County
or grantee.
A grantee shall carry insurance in such forms and with such
companies as specified in the franchise agreement.
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.
The 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 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 actions or omissions 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.
The County shall promptly notify the grantee of any claims subject
to indemnification by the grantee and shall cooperate with all reasonable
requests by the grantee for information, documents, testimony or other
assistance appropriate to a resolution of such claims. The grantee
shall have full responsibility for and control of any action or undertaking
directed at the resolution of such claims.
A.
A grantee shall not deny service, deny access or otherwise discriminate
against subscribers, channel users or general citizens on the basis
of race, color, religion, national origin, disability or gender. A
grantee shall comply at all times with all other applicable federal,
state and local laws and regulations and all executive and administrative
orders 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, and state and local regulations, as amended
from time to time.
C.
A grantee shall, at all times, comply with the privacy requirements
of state and federal law.
D.
A grantee is required to make all cable television system services
available to all residential dwellings throughout the franchise area
which meet the minimum housing density requirements set forth herein
and/or in the franchise agreement.
A grantee shall provide cable service throughout its entire
franchise area pursuant to the provisions of this chapter and its
franchise agreement, and shall keep a record for at least three years
of all requests for service received by the grantee. Upon reasonable
notice, this record shall be available for inspection by the County
at the local office of the grantee during normal business hours.
A.
New construction timetable. The system construction timetable in
an initial service area shall be established in the franchise agreement.
B.
Line extensions. Unless otherwise provided for in the franchise agreement:
(1)
In areas of the franchise not included in the initial service areas,
a grantee shall be required to extend its system pursuant to the following
requirements:
(a)
No customer shall be refused service arbitrarily. The grantee
is hereby authorized to 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 an approved
engineering plan of each project. Subject to the density requirements
(25 dwelling units per street mile as measured from the existing system
and 25 dwelling units per street mile within the new subdivision),
the grantee shall commence the design and construction process upon
receipt of the final engineering plan. Upon notification from the
County that the first home in the project has been approved for a
building permit, a grantee shall have a maximum of three months to
complete the construction/activation process within the project; provided,
however, that the three-month period shall be reasonably extended
to accommodate delays caused by circumstances beyond the control of
the grantee.
(b)
A grantee must extend and make cable service available to every
dwelling unit in all unserved, developing areas having at least 25
dwelling units per street mile, as measured from the existing system,
and shall extend its system following established utility easements.
(c)
A grantee must extend and make cable service available to any
isolated resident outside the initial service area requesting connection
at the standard connection charge, if the connection from the existing
cable plant to the isolated resident would require no more than a
standard one-hundred-fifty-foot drop line, unless an alternative standard
is provided for in the franchise agreement.
(2)
Early extension. In areas not meeting the requirements for mandatory
extension of 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. The grantee shall then
extend service upon request of the potential subscriber. A grantee
may require advance payment. The amount paid by subscribers for early
extensions may be nonrefundable.
(3)
New development underground. In cases of new construction or property
development where utilities are to be placed underground, the developer
or property owner shall give a grantee reasonable notice, but not
less than 30 days' notice, of such construction or development,
and of the particular date on which open trenching will be available
for the grantee's installation of conduit, pedestals and/or vaults
and laterals to be provided at the grantee's expense. A grantee
may also provide specifications as needed for trenching. Costs of
trenching and easements required to bring service to the development
shall be borne by the developer or property owner, except that if
a grantee fails to install its conduit, pedestals and/or vaults and
laterals within five working days of the date the trenches are available,
as designated in the notice given by the developer or property owner,
then should the trenches be closed after the five-day period, the
cost of new trenching is to be borne by the grantee.
C.
Special agreements. 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.
(1)
A grantee, in its application, may propose a line extension policy
which will result in serving more residents of Kent County than as
required in this section, in which case the grantee's line extension
policy shall be incorporated into a franchise agreement, and will
be binding on the grantee.
A.
Compliance with construction and technical standards. A grantee shall
construct, install, operate and maintain its system in a manner consistent
with all laws, ordinances, construction standards, governmental requirements
and FCC technical standards, as the same may be amended from time
to time. 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 television
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. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(2)
A grantee shall at all times comply with applicable provisions of
the following:
(3)
In any event, a 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 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 television system shall comply with the
applicable standards of the Occupational Safety and Health Administration.
(6)
RF leakage shall be checked at reception locations for emergency
radio services to prove no interference signal combinations are possible.
Stray radiation shall be measured adjacent to any proposed aeronautical
navigation radio sites to prove no interference to airborne navigational
reception in the normal flight patterns. FCC rules and regulations
shall govern.
(7)
A grantee shall maintain equipment capable of providing standby power
for the headend and transport system for a minimum of two hours, unless
otherwise provided for in the franchise agreement.
(8)
In all areas of Kent County where the cables, wires and other like
facilities of public utilities are placed underground, a grantee shall
place its cables, wires or other like facilities underground. When
all other pubic utilities relocate their facilities from pole to underground,
a grantee must concurrently do so.
C.
Repeated and verified failure to maintain specified technical standards
shall constitute a material franchise violation.
A.
For the purpose of operating and maintaining a cable system in the
franchise area, the grantee may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under, upon, across
and along the streets and public ways 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 local ordinances.
B.
Interference with persons and improvements. A grantee's 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 streets and public ways,
or interfere with any improvements the County may deem proper to make,
or unnecessarily hinder or obstruct the free use of the streets, alleys,
bridges, easements or public property.
C.
Before commencing construction in, above, over, under, across, through
or in any way connected with the streets, public ways or public places
of Kent County (other than such public areas not under the County's
control), the grantee shall obtain all required permits which the
grantee reasonably can foresee to be necessary in the reasonable future
(at the fees regularly charged therefor), including but not limited
to the written approval of the County, which approval shall not be
unreasonably withheld or delayed. The County may designate the location,
manner and time of any construction within the roads and rights-of-way
over which the County has jurisdiction.
D.
Restoration to prior condition. In case of any disturbance of pavement,
sidewalk, landscaping, driveway or other surfacing, including the
surface of streets and alleys, caused by a grantee or any person acting
on its behalf, a 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 paving, sidewalk, driveway, landscaping or 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 street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining approval to do so in the manner prescribed in Subsections C and D of this section and 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. A grantee shall immediately respond to and rectify any complaint resulting from an activity of any subcontractor, agent or employee.
F.
A grantee shall restore any street 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 property 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 street or other public place or remove
from said street or other public place 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.
H.
A grantee shall have the authority to trim trees on public property
at its own expense as may be necessary to protect its wire and facilities,
subject to the direction of the County or 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
convenience would 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
a 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 pubic 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.
(3)
In the absence of any governing federal or state statute, where a
public utility serving the County desires to make use of the poles
or other wire-holding structures of a grantee, but agreement thereof
with the grantee cannot be reached, the County may require the grantee
to permit such use for such consideration and upon such terms as the
County shall determine to be just and reasonable, if the County determines
that the use would enhance the public convenience and would not unduly
interfere with the grantee's operations.
J.
Relocation of the facilities. If at any time during the term of a
franchise the County shall lawfully elect to alter or change the grade
of any street, alley or other public ways 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.
Cooperation with building movers. 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 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. A grantee shall be given
not less than 21 day's advance notice to arrange for such temporary
wire changes.
L.
The operations and activities of a grantee that impact streets, sidewalks and other public ways are further subject to the provisions of Chapter 152 of the County Code, and any conflict between the provisions of this chapter and Chapter 152 shall be resolved in favor of the best interests of the County.
A.
A grantee shall put, keep and maintain all parts of a cable system
in good condition throughout the term of a franchise.
B.
Upon the reasonable request for service by any person located within
a grantee's franchise area, the grantee shall, within 60 days,
furnish the requested service to such person within the terms of the
line extension policy. A request for service shall be unreasonable
for the purpose of this subsection if no trunk line installation capable
of servicing that person's block has as yet been installed.
C.
A grantee shall render efficient service, make repairs promptly and
interrupt service only for good cause and for the shortest time possible.
Such interruptions, insofar as possible, shall be preceded by notice
and shall occur during periods of minimum system use.
D.
A grantee shall not allow its cable system or other operations to
interfere with television reception of subscribers or persons not
served by the grantee, nor shall a system interfere with, obstruct
or hinder in any manner the operation of the various utilities serving
the residents within the confines of Kent County, nor shall other
utilities interfere with a grantee's system.
E.
A grantee shall have knowledgeable, qualified grantee representatives
available to respond to customer telephone inquiries 24 hours per
day and seven days per week. A staffed answering service, or an automated
response system, shall be considered a qualified grantee representative
during evening and weekend hours.
F.
Under normal operating conditions, telephone answer time, including
wait time and the time required to transfer the call, shall not exceed
30 seconds. This standard shall be met no less than 76% of the time
as measured on a quarterly basis.
G.
Under normal operating conditions, a customer will receive a busy
signal less than 3% of the total time that the grantee's office
is open for business. This standard shall be met no less than 76%
of the time as measured on a quarterly basis.
H.
Standard installations will be performed within seven business days
after an order has been placed. A "standard installation" is one that
is within 150 feet of an existing system.
I.
Excluding those situations which are beyond its control, a grantee
will respond to any service interruption promptly and in no event
later than 24 hours from the time the interruption becomes known.
All other regular service requests will be responded to the next business
day after notification of the service problem. The appointment window
alternatives for installations, service calls and other installation
activities will be morning or afternoon, not to exceed a four-hour
window during normal business hours for a system or at a time that
is mutually acceptable to a grantee and a customer. A grantee will
schedule supplemental hours during which appointments can be scheduled
based on the needs of the community. If at any time an installer or
technician is running late, an attempt to contact the customer will
be made and the appointment rescheduled, as necessary, at a time that
is convenient to the customer.
J.
Unless otherwise provided for in the franchise agreement, a customer
service center(s) and bill payment location(s) convenient to subscribers
in Kent County will be open for walk-in customer transactions during
normal business hours.
K.
In the event of an outage of subscriber cable service, the following
shall apply after proper notification to the grantee:
(1)
For outages of over six hours and up to seven days, the grantee shall
provide, at a subscriber's written request, a credit of 1/30
of one month's fees for affected services for each twenty-four-hour
period service is interrupted for six or more hours for any single
subscriber, with the exception of subscribers disconnected because
of nonpayment or excessive signal leakage or circumstances beyond
grantee's reasonable control. For outages lasting six hours or
less, the credit extended to a subscriber shall be prorated on an
hour-for-hour basis.
(2)
For outages of seven days or more in one month which have been properly
reported to the grantee and which are within the reasonable control
of the grantee, the grantee shall provide, at a subscriber's
written request, a full month's credit for affected services
for affected subscribers.
L.
A grantee will provide written information in each of the following
areas at the time of installation and at any future time upon the
request of the customer:
M.
Bills will be clear, concise and understandable, with all services
itemized consistent with the federal law.
N.
Credits will be issued promptly, but no later than a customer's
next billing cycle following the resolution of the request and the
return of equipment to a grantee if service has been terminated.
O.
Unless otherwise specified by FCC regulations, customers and the
County will be notified a minimum of 30 days in advance of any rate
or programming channel change, provided that the change is within
the control of a grantee.
P.
A grantee shall maintain and operate its cable system in accordance
with the rules and regulations as are incorporated herein or may be
promulgated by the FCC, the United States Congress or the state.
Q.
A grantee shall continue, through the term of a franchise, to maintain
the technical standards and quality of service specified in this chapter.
Should the County find, by resolution, that a grantee has failed to
maintain these technical standards and quality of service, the grantee
shall be required to implement a plan for resolution.
R.
A grantee shall keep a record of monthly service calls which will
indicate the nature of each service complaint received in the last
24 months, the date and time it was received, the disposition of said
complaint and the time and date thereof. Upon reasonable notice, such
records shall be made available to the County for inspection.
S.
All personnel of a grantee contacting subscribers or potential subscribers
outside the office of the grantee must be clearly identified as associated
with the grantee.
T.
The provisions of § 76-42 notwithstanding, in the event a grantee fails to arrive for installations and/or service calls within the scheduled four-hour time frame set forth in this chapter under normal operating conditions less than 76% of the time as measured on a quarterly basis, then the County may impose a monetary penalty upon the grantee. The amount of such monetary penalty shall be established by resolution of the County Commissioners. Prior to imposition of the penalty, the County shall notify the grantee, in writing, of the alleged default. Upon receipt of the notice, the grantee shall have a sixty-day period in which to correct the default or it may elect to pay such penalty, in which event the act or omission giving rise to the penalty shall not be the basis for any other sanction by the County. In the alternative, a grantee shall have the right to request a hearing affording due process before the Board of County Commissioners to determine whether the penalty should be imposed, and the imposition of any such penalty shall be stayed pending the final outcome of such proceeding.
U.
A grantee shall not terminate residential service for nonpayment
of a delinquent account unless the grantee provides initial notice
of the delinquency and impending termination at least 10 days prior
to the proposed termination. Such notice of delinquency shall be mailed,
postage prepaid, to the subscriber to whom the service is billed.
This notice shall not be sent until the 28th day after the initial
bill for service was mailed to the subscriber. The notice of delinquency
and impending termination may be part of a billing statement. This
section does not apply to subscribers disconnected due to NSF (not
sufficient funds) checks.
V.
Refund checks shall be issued by a grantee within 30 days following
a subscriber's valid request.
A.
It shall be the right of all subscribers to continue receiving service
insofar as their financial and other obligations to a grantee are
honored. If a grantee elects to rebuild, modify or sell its 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 system, a grantee shall cooperate with the County, new franchisee
or operator in maintaining continuity of service to all subscribers.
During this transition period, which shall not exceed 12 months, a
grantee shall be entitled to the revenues for any period during which
it operates the system and shall be entitled to reasonable costs for
its services until it no longer operates the system.
C.
Unless otherwise provided for in the franchise agreement, if a grantee
fails to operate a system for 14 consecutive days without prior approval
of the County or without just cause, the County may, at its option,
operate the 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 system received by the County that are the result of the
grantee's failure to perform.
A.
A cable television system shall have facilities as set forth in the
applicable franchise agreement.
B.
Such cable system shall maintain a plant having the technical capacity
for two-way communications, unless otherwise provided in the franchise
agreement.
C.
At the County's request, a grantee shall maintain the following:
(1)
At least one specially designated, noncommercial public access channel
available on a first-come, nondiscriminatory basis;
(2)
At least one specially designated channel for use by local educational
authorities; and
(3)
At least one specially designated channel for local government uses.
(4)
Provided, however, that the uses specified in this section may be
combined on one or more channels until such time as the County demonstrates
sufficient need for additional channels pursuant to a demonstrable
programming demand provided for in the franchise agreement. Financial
and technical support, replacement and maintenance of equipment of
this facility shall be separately incorporated into the franchise
agreement.
(5)
An institutional network (I-Net) of cable, optical, electrical or
electronic equipment used for the purpose of transmitting two-way
telecommunications signals interconnecting designated entities if
set forth in a franchise agreement and mutually agreed to by a grantee
and the County. The County and the grantee may agree that such an
institutional network may be provided by utilizing capacity on the
subscriber system.
D.
A grantee shall incorporate into its cable television system sufficient
capacity that will permit the County, in times of emergency, to override,
by remote control, the audio of all channels simultaneously which
the grantee may lawfully override. A grantee shall provide emergency
alert capacity pursuant to FCC rules. A grantee shall cooperate with
the County in the use and operation of the emergency alert override
system.
E.
A grantee may be required to interconnect its system with other contiguous
cable television systems for the purpose of sharing PEG access programming.
Such interconnection shall be made within a reasonable time limit
to be established by the County.
(1)
Interconnection procedure. Upon receiving the directive of the County
to interconnect, a grantee shall immediately initiate negotiations
with the other affected system or systems in order to complete the
interconnection link.
(2)
Relief. A grantee may be granted reasonable extensions of time to
interconnect or the County may rescind its order to interconnect upon
petition by the grantee to the County. The County shall grant the
request if it finds that the grantee has negotiated in good faith
and has failed to obtain an approval from the operator or franchising
authority of the system to be interconnected, or the cost of the interconnection
would cause an unreasonable or unacceptable increase in subscriber
rates.
(3)
Cooperation required. A grantee shall cooperate with any interconnection
corporation, regional interconnection authority or County, state and
federal regulatory agency which may be hereafter established for the
purpose of regulating, financing or otherwise providing for the interconnection
of cable systems beyond the boundaries of Kent County.
(4)
The full cost of an interconnection link shall be borne by the County
if the interconnection is being made at the direction of the County.
However, the full cost of this link shall be borne by the participating
persons in the event that the interconnection is being made for any
reason other than at the direction of the County.
A.
The County Administrator, or his designee, is designated as having
primary responsibility for the continuing administration of a franchise
and implementation 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. A grantee will use its good faith efforts to arrange for one
or more payment locations in a central location where customers can
pay bills or conduct other business activities.
C.
As subscribers are connected or reconnected to a grantee's cable
system, the grantee shall, by appropriate means, such as a card or
brochure, furnish information concerning the procedures for making
inquiries or complaints, including the address and local telephone
number of 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 system, provided that the County
shall not require a grantee to test the system as a whole, or any
specific part thereof, more than once during any calendar year, unless
a test shows that the 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 complaint or problem which precipitated the
tests;
(b)
What 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 subsection.
(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 the 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. If the test should
prove that the grantee met the technical standards, the County shall
bear the cost of such test.
A grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the grantee to exercise
its rights and perform its obligations under a franchise and to assure
an uninterrupted service to each and all of its customers; provided,
however, that such rules, regulations, terms and conditions shall
not be in conflict with the provisions of this chapter or applicable
state and federal laws, rules and regulations.
A.
Except as may be provided in a franchise agreement, a franchise or a franchised cable system shall not be assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, or control over such franchise or system, pass to or vest in any person without the prior written consent of the County. A grantee may, however, transfer or assign a franchise to any affiliate (as defined in § 76-2) or to a wholly owned subsidiary of the grantee (or its parent corporation), and such subsidiary may transfer or assign the franchise back to the grantee without such consent, providing that such transfer or assignment is without any release of liability or responsibility of the grantee for any purpose, including franchise renewal. The proposed assignee must inter alia show financial responsibility as determined by the County and must agree to comply with all provisions of the franchise. The County shall have 120 days to act upon any request for approval of such a sale or transfer submitted, in writing, that contains or is accompanied by the information required by FCC regulations and the County. The County shall be deemed to have consented to a proposed transfer or assignment if its refusal to consent is not communicated, in writing, to the grantee within 120 days following receipt of written notice and aforementioned information, unless the requesting party and the County agree to an extension of time.
B.
A grantee shall promptly notify the County of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the grantee. Every assignment or transfer of a grantee as specified in § 76-30A shall make a franchise subject to revocation unless and until the County shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the County may inquire into the qualifications of the prospective controlling party and such other legal, technical and financial matters as the County deems pertinent to its approval, and a grantee shall assist the County in such inquiry.
C.
The consent or approval of the County to any transfer of a grantee
shall not constitute a waiver or release of the rights of the County
in and to the streets, and any transfer, by its terms, shall be expressly
subordinate to the terms and conditions of this chapter and the franchise
agreement.
D.
In the absence of extraordinary circumstances, the County shall have
the discretion to disapprove any transfer or assignment of an initial
franchise prior to substantial completion of construction of the proposed
system.
E.
In no event shall a transfer of ownership or control be approved
without the successor in interest becoming a signatory to the applicable
franchise agreement.
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, books, records, maps,
plans and other like materials of the grantee applicable to the cable
system, at any time during normal business hours, provided where volume
and convenience necessitate, a grantee may require inspection to take
place on the grantee's premises.
B.
The following records and/or reports are to be made available to
the County upon 30 day's prior written request.
(1)
An annual review or progress report submitted by a grantee to the
County;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 396-C (or successor form) or any supplemental
forms related to equal opportunity or fair contracting policies;
(4)
Subscriber inquiry/complaint resolution date; and
(5)
Periodic construction update reports, including, where appropriate,
the submission of strand maps.
Copies of all petitions, applications, communications and reports
either submitted by a grantee to the FCC, Securities and Exchange
Commission or any other federal or state regulatory commission or
agency having jurisdiction in respect to any matters affecting cable
television operations authorized pursuant to the franchise, or received
from such agencies, shall be provided to the County 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.
At the expiration of the term for which a franchise is granted
or if any renewal request is denied, or upon the termination of a
franchise as provided herein, a grantee shall forthwith, upon reasonable
notice by the County, remove, at its own expense, all designated portions
of its cable television system from all streets and public property
within the County. If a grantee fails to do so within 12 months of
notice, the County may perform the work at the grantee's expense.
Upon such notice of removal, a bond shall be furnished by a grantee
in an amount sufficient to cover this expense.
In addition to the inherent powers of the County to regulate
and control a cable television franchise, and those powers expressly
reserved by the County or agreed to and provided for in a franchise
agreement, the right and power is hereby reserved by the County to
promulgate such additional regulations as it shall find necessary
in the exercise of its lawful powers and furtherance of the terms
and conditions of this chapter; provided, however, that such rules,
regulations, terms or conditions shall not be in conflict with any
franchise agreement granted hereunder or applicable state and federal
laws, rules and regulation.
A.
The County and a grantee may hold scheduled performance evaluation
sessions within 30 days of the third and sixth anniversary dates of
the grantee's award or renewal of the franchise and as may be
required by federal and state law. All such evaluation sessions shall
be open to the public.
B.
Special evaluation sessions may be held at any time during the term
of a franchise at the request of the County or the grantee.
C.
All scheduled performance evaluation sessions shall be open to the
public and announced in a newspaper of general circulation in accordance
with legal notice. A grantee may be required by the County to notify
its subscribers of all such evaluation sessions by announcements on
at least one channel of its system during a specified time frame preceding
each session.
D.
Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, franchise fee; penalties;
application of new technologies; system performance; customer complaints;
privacy; amendments to this chapter; judicial and FCC rulings; line
extension policies; and grantee or County rules.
E.
Members of the general public may add topics either by working through
the County or the grantee or by presenting a petition to the County
Commissioners outlining the topic or topics sought to be discussed
at the evaluation session.
A.
In addition to all other rights and powers retained by the County
under a franchise or otherwise, the County reserves the right to forfeit
and terminate a franchise and all rights and privileges of a grantee
hereunder in the event of a substantial breach of the terms and conditions
of this chapter or a franchise agreement. A substantial breach by
a grantee shall include, but shall not be limited to, the following:
(1)
Violation of any material provision of a franchise or this chapter,
or any material rule, order, regulation or determination of the County
made pursuant to a franchise or this chapter;
(2)
Attempt to evade any material provision of a franchise or practice
any fraud or deceit upon the County or the grantee's subscribers
or customers;
(4)
Failure to provide the services promised in the grantee's application,
if any, as incorporated in a franchise agreement;
(5)
Failure to restore service after 96 consecutive hours of an outage
or service interruption, except when approval of such outage or service
interruption is obtained from the County; or
(6)
Material and intentional misrepresentation of fact in the application
for or negotiation of a franchise.
B.
The foregoing shall not constitute a major breach if the violation
occurs but is without fault of a grantee or occurs as a result of
circumstances beyond its control. A grantee shall not be excused by
mere economic hardship or by misfeasance or malfeasance of its directors,
officers or employees.
C.
The County shall make a written demand that a grantee comply with
any such provision, rule, order or determination under or pursuant
to this chapter or a franchise agreement. If the violation by a grantee
continues for a period of 30 days following such written demand, without
written or other proof acceptable to the County that the corrective
action has been taken or is being actively and expeditiously pursued,
the County may place the issue of termination of a franchise before
the Board of County Commissioners. The County shall cause to be served
upon a grantee, at least 20 days prior to the date of such meeting,
a written notice of intent to request such termination and the time
and place of the meeting. Public notice shall be given of the meeting
and the issue(s) which the Board of County Commissioners is to consider.
D.
The Board of County Commissioners shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine,
in its discretion, whether or not any violation by a grantee has occurred.
E.
If the Board of County Commissioners determines the violation by
a grantee was the fault of the grantee and within its control, the
Board of County Commissioners may, by resolution, declare that the
franchise of the grantee be terminated unless there is compliance
within such period as the Board of County Commissioners may fix; such
period shall not be less than 60 days, provided no opportunity for
compliance need be granted for fraud or misrepresentation.
A.
A franchise may be deemed revoked 120 calendar days after an assignment
for the benefit of creditors or the appointment of a receiver or trustee
to take over the business of a franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors
or other action or proceeding; provided, however, that a franchise
may be reinstated at the County's sole discretion if, within
that one-hundred-twenty-day period:
(1)
Such assignment, receivership or trusteeship has been vacated; or
(2)
Such assignee, receiver or trustee has fully complied with the terms
and conditions of this chapter and the applicable franchise agreement
and has executed an agreement, approved by a court of competent jurisdiction,
under which it assumes and agrees to be bound by the terms and conditions
of this chapter and the applicable franchise agreement and such other
conditions as may be established or as are required by applicable
law.
B.
Notwithstanding the foregoing, in the event of foreclosure or other
judicial sale of any of the facilities, equipment or property or a
franchisee, the County may revoke the franchise, following a public
hearing before the Board of County Commissioners, by serving notice
on the grantee and the successful bidder, in which event the franchise
and all rights and privileges of the franchise will be revoked and
will terminate 30 calendar days after serving such notice, unless:
(1)
The County has approved the transfer of the franchise to the successful
bidder; and
(2)
The successful bidder has covenanted and agreed with the County to
assume and be bound by the terms and conditions of the franchise agreement
and this chapter and such other conditions as may be established or
as are required pursuant to this chapter or a franchise agreement.
A.
Federal regulations pursuant to the Cable Act shall apply to the right of acquisition by the County. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B of this section shall apply.
B.
Upon the expiration of the term of a franchise and denial of any
renewal or upon any other termination thereof as provided in this
chapter, the County, at its election, shall have the right to purchase
and take over a system upon resolution by the County Commissioners.
In such event, the system shall be purchased at a price equal to the
fair market value, determined on the basis of the cable system's
value as a going concern but with no value allocated to the franchise
itself, or at a price determined in accordance with the franchise
agreement if the franchise agreement contains provisions applicable
to such an acquisition. The County must begin exercise of its option
to purchase the system within 60 days of the denial of franchise renewal.
Nothing shall prohibit a grantee, in the event of the election of
the County to purchase a system, from requesting a court of competent
jurisdiction to set a reasonable bond of the County to secure the
purchase price, which is to be immediately available funds at the
time of purchase.
A.
Notwithstanding any other provisions of this chapter to the contrary,
a grantee shall at all times comply with all laws and regulations
of the local, state and federal government or any administrative agencies
thereof; provided, however, that if any such state or federal law
or regulation shall require the grantee to perform any service, or
shall permit a grantee to perform any service, or shall prohibit the
grantee from performing any service, in conflict with the terms of
this chapter or of any law or regulation of the County, then, as soon
as possible following knowledge thereof, the grantee shall notify
the County of the point of conflict believed to exist between such
regulation or law and the laws or regulations of the County or this
chapter.
B.
If the County determines that a material provision of this chapter
is affected by any subsequent action of the state or federal government,
the County shall modify any of the provisions herein to comply with
such state or federal law or regulation to such reasonable extent
as may be necessary to carry out the full intent and purpose of this
chapter and the franchise agreement and to preserve the benefit of
the bargain for each party.
A.
Interference with cable service is prohibited. Neither the owner
of any multiple-unit residential dwelling nor his agent or representative
shall interfere with the right of any tenant or lawful resident thereof
to receive cable service, cable installation or maintenance from a
grantee regulated by and lawfully operating under a valid and existing
franchise issued by the County.
B.
Gratuities and payments to permit service are prohibited. Neither
the owner of any multiple-unit residential dwelling nor his agent
or representative shall ask, demand or receive any payment, service
or gratuity in any form as a condition for permitting or cooperating
with the installation of a cable service to the dwelling unit occupied
by a tenant or resident requesting cable service.
C.
Neither the owner of any multiple-unit residential dwelling nor his
agent or representative shall penalize, charge or surcharge a tenant
or resident or forfeit or threaten to forfeit any right of such tenant
or resident or discriminate in any way against such tenant or resident
who requests or receives cable service from a grantee operating under
a valid and existing franchise issued by the County.
D.
Reselling service is prohibited. No person shall resell, without
the expressed written consent of the County, any cable service, program
or signal transmitted by a grantee under a franchise issued by the
County.
E.
Protection of property is permitted. Nothing in this chapter shall
prohibit a person or the County from requiring that cable television
system facilities conform to laws and regulations and reasonable conditions
necessary to protect safety, functioning, appearance and value of
premises or the convenience and safety of persons or property.
F.
Except as provided by state or federal law, nothing in this chapter
shall prohibit a person from requesting a grantee to indemnify the
owner or his agents or representatives for damages or from liability
for damages caused by the installation, operation, maintenance or
removal of cable system facilities.
A.
In the event the County believes that a grantee has not complied
with the provisions of this chapter or a franchise agreement, the
County, by action of the County Administrator, shall notify the grantee,
in writing, by personal delivery or registered or certified mail,
specifying the nature of the alleged noncompliance or default and
demanding correction within a reasonable time.
B.
A grantee shall have 30 days from the receipt of the County's notice described in § 76-42A:
(1)
To respond to the County, contesting the assertion of the noncompliance
or default; or
(2)
To cure such noncompliance or default; or
(3)
In the event that, by nature of the noncompliance or default, such
noncompliance or default cannot be cured within the thirty-day period,
initiate reasonable steps to remedy such noncompliance or default
and notify the County of the steps being taken and the projected date
that they will be completed.
C.
In the event a grantee fails to respond to the County's notice described in Subsection A of this section, fails to correct a violation within the time prescribed and diligently remedy such violation thereafter or responds contesting the alleged noncompliance, the grantee shall then be given a written notice of not less than 20 days of a public hearing to be held before the Board of County Commissioners. Said notice shall specify the violation(s) alleged. At the public hearing, the Board of County Commissioners shall hear and consider all relevant evidence, and thereafter render findings and its decision.
D.
In the event the Board of County Commissioners finds that a grantee
has corrected the violation, or has diligently commenced correction
of such violation after notice thereof from the grantor and is diligently
proceeding to fully remedy such violation, or that no material violation
has occurred, the proceedings shall terminate and no penalty or other
sanction shall be imposed. In determining whether a violation is material,
the grantor shall take into consideration the reliability of the evidence
of the violation, the nature of the violation and the damage, if any,
caused to the grantor thereby, whether the violation was chronic,
and any justifying or mitigating circumstances and such other matters
as the grantor may deem appropriate.
E.
If the County determines after the due process hearing prescribed in Subsection C that the grantee is in noncompliance and that noncompliance is not cured within the times set forth in Subsection B of this section, or in the event that the alleged noncompliance or default is not remedied within the 30 days or the date projected pursuant to Subsection B of this section, the violation may be deemed a Class A civil infraction for each day that a violation occurs, in addition to any amounts otherwise due, and may be chargeable to the grantee's surety bond, letter of credit, performance bond or security deposit. In the alternative, the County may seek legal or equitable relief from any court of competent jurisdiction.
F.
Unless otherwise provided in this chapter, a grantee shall pay any
penalty assessed in accordance with this chapter within 30 days after
receipt of notice from the County of such penalty.
G.
To the extent that penalties are applied to a grantee under this
section, a grantee shall not be subject to additional liquidated damages
payable to the County for the same violation.
H.
Pending litigation or any appeal to any regulatory body or court
having jurisdiction over a grantee shall not excuse the grantee from
the performance of its obligations under this chapter or its franchise
agreement unless a stay is obtained. Failure of the grantee to perform
such obligations because of pending litigation or petition, in the
absence of a stay issued by a forum of competent jurisdiction, may
result in forfeiture or revocation pursuant to the provisions of this
chapter and/or its franchise agreement.
The County reserves the right to regulate rates for basic cable
service and any other services offered over the cable system, to the
extent permitted by federal or state law. The grantee shall be subject
to the rate regulation provisions provided for herein and those of
the FCC. The County shall follow the rules relating to cable rate
regulation promulgated by the FCC.
If any provision of this chapter is held by any court or by
any state or federal agency of competent jurisdiction to be invalid
as conflicting with any federal or state law, rule or regulation now
or hereinafter in effect, or is held by such court or agency to be
modified in any way in order to conform to the requirements of any
such law, rule or regulation, such provision shall be considered a
separate, distinct and independent part of this chapter, and such
holding shall not affect the validity and enforceability of all other
provisions hereof.
A grantee shall not oppose intervention by the County in any
suit or proceeding to which the grantee is a party in connection with
a franchise hereunder.
