[HISTORY: Adopted by the Mayor and Town Council of the Town
of Brentwood as indicated in article histories. Amendments noted where
applicable.]
[Adopted 5-18-1981 by Ord. No. VII of the Ordinances of the
Town of Brentwood (Ch. 7 of the 1986 Code)]
The Mayor and Town Council of the Town of Brentwood, Maryland,
hereby authorizes and establishes an authority which will be called
the "Town of Brentwood Cable TV Authority." Said Authority shall be
charged with the responsibility and shall have full capacity to establish
rules and regulations which will govern any and all operations of
cable television lines, facilities, equipment leasing, systems of
communications, cables and television and FM signal carriage within
the Town of Brentwood boundaries.
The function of the Town of Brentwood Cable TV Authority shall
be governed and controlled by the Mayor and Town Council of Brentwood.
All final decisions made by the Authority shall be subject to approval
by the Mayor and Town Council.
[Amended 3-16-1987]
The membership of the Authority shall consist of at least one
member of the Town Council, who shall be Chairman, and other residents
of Brentwood appointed by the Town Council. Nonresidents can participate
but are not eligible to vote on recommendations.
The Authority shall promulgate rules and regulations which will
govern the operation of the Authority, which will specifically describe
requirements for granting franchises, costs to be incurred thereunder
and other details as deemed necessary.
[Added 5-9-1994]
A.
The Town will follow the Federal Communications Commission (FCC)
rate regulations in its regulations of the basic service rates and
charges of a franchisee and any other cable television system operating
in the Town, notwithstanding any different or inconsistent provisions
in the franchise.[1]
B.
In connection with such regulation, the Town will ensure a reasonable
opportunity for consideration of the views of interested parties.
C.
The Mayor or his designee is authorized to execute on behalf of the
Town and file with the FCC such certification forms or other instruments
as are now or may hereafter be required by the FCC rate regulations
in order to enable the Town to regulate basic service rates and charges.
[Added 9-19-1994]
Upon the written request of a franchisee and the furnishing
of information in support of the granting of such request as being
in the best interest of subscribers, the Town Council shall have the
power to extend an existing franchise for a period of time less than
that of the franchise as originally granted.
[Adopted 1-22-2007 by Ord. No. 2007-01 (Ch. 8 of the 1986
Code)]
A.
Title. This article shall be known and may be cited as the "Town
Cable Communications Regulatory Code."
B.
Effective date and repealer. The provisions of this article shall
take effect and be in force from and after passage. All prior ordinances
or parts of ordinances in conflict with the provisions of this article
are repealed as of that date.
C.
Findings and purpose.
(1)
The Town Council finds that the further development of cable communications
may result in great benefits for the people of the Town. Cable technology
is rapidly changing, and cable plays an essential role as part of
the Town's basic infrastructure. Cable television systems occupy and
extensively make use of scarce and valuable public rights-of-way,
in a manner different from the way in which the general public uses
them, and in a manner reserved primarily for those who provide essential
services to the public subject to special public interest obligations,
such as utility companies. The Town Council finds that public convenience,
safety, and general welfare can best be served by establishing regulatory
powers vested in the Town Council or such persons as the Town Council
so designates to protect the public and to ensure that any franchise
granted is operated in the public interest.
(2)
The Town further finds that cable systems have the capacity to provide
not only entertainment and information services to the Town's residents,
but can provide a variety of broad and interactive communications
services to institutions and individuals.
(3)
In light of the foregoing, the following goals, among others, underlie
the provisions set forth in this article:
(a)
Cable service should be available to all Town residents.
(b)
A cable system should be capable of accommodating both present
and reasonably foreseeable future cable-related needs of the Town.
(c)
A cable system should be constructed and maintained during a
franchise term so that changes in technology may be integrated to
the maximum extent possible into existing system facilities.
(d)
A cable system should be responsive to the needs and interests
of the local community, and should provide a diversity of information
sources and services to the public.
(e)
A cable operator should pay fair compensation to the Town for
the use of local public rights-of-way.
(4)
All provisions set forth in this article shall be construed to serve
the public interest and the foregoing public purposes, and any franchise
issued pursuant to this article shall be construed to include the
foregoing findings and public purposes as integral parts thereof.
D.
Delegation of powers. The Mayor and Town Council may delegate the
performance of any act, duty, or obligation, or the exercise of any
power under this article or any franchise agreement to any employee,
officer, department or agency, except where prohibited by applicable
law.
A.
Usage, general. For the purposes of this article, the terms, phrases, words, and abbreviations set forth in Subsection B of this section shall have the meanings given therein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number, and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, as amended, and, if not defined therein, their common and ordinary meaning.
B.
ACCESS CHANNEL
AFFILIATE
AUTHORITY
BASIC SERVICE
CABLE ACT
CABLE SERVICE
CABLE SYSTEM or SYSTEM
(1)
(a)
(b)
(c)
(d)
(e)
(2)
CHANNEL
COMPLAINTS
CONVERTER
COUNCIL
CUSTOMER
EDUCATIONAL ACCESS CHANNEL or EDUCATIONAL CHANNEL
FAIR MARKET VALUE
FCC
FORCE MAJEURE
FRANCHISE
FRANCHISE AGREEMENT
FRANCHISE AREA
FRANCHISEE
GOVERNMENTAL ACCESS CHANNEL or GOVERNMENTAL CHANNEL
GROSS REVENUES
(1)
(2)
INSTALLATION
LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL
NET PROFIT
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
OVS
PEG
PERSON
PROGRAMMER
PUBLIC ACCESS CHANNEL
PUBLIC RIGHTS-OF-WAY
PUBLIC SERVICE CORPORATION
SECURITY FUND
SERVICE INTERRUPTION
SUBSCRIBER
TOWN
TRANSFER
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(2)
USER
Definitions.
Any channel on a cable system set aside by a franchisee for
public, educational, or governmental use.
Any person who owns or controls, is owned or controlled by,
or is under common ownership or control with a franchisee.
The Town's Cable TV Authority.[1]
Any service tier that includes the retransmission of local
television broadcast signals and/or public, educational, and governmental
access signals.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended from time to time.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable television service which includes
video programming and which is provided to multiple subscribers within
the Town, 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 Communications 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;
An open video system that complies with 47 U.S.C. § 573;
or
Any facilities of any electric utility used solely for operating
its electric utility system.
Any part of a facility described in Subsection (1) of this definition, including, without limitation, converters.
A six-megahertz (MHZ) frequency band, or equivalent capacity,
which is capable of carrying either one standard video signal, a number
of audio, digital or other non-video signals or some combination of
such signals.
Statements from any subscriber, former subscriber, or other
Town resident expressing concern or dissatisfaction with any aspect
of the cable system or the franchisee's operations, including, without
limitation, statements relating to employee courtesy.
An electronic device which may serve as an interface between
a system and a subscriber's television receiver or other terminal
equipment, and which may perform a variety of functions, including
signal security, descrambling, electronic polling, frequency conversion
and channel selection.
The governing body of the Town.
Same as "subscriber."
Any channel on a cable system set aside by a franchisee for
educational use.
The price that a willing buyer would pay to a willing seller.
The Federal Communications Commission, its designee, or any
successor governmental entity thereto.
Severe or unusual weather conditions, strike, labor disturbance,
lockout, war or act of war (whether an actual declaration of war is
made or not), insurrection, riot, act of public enemy, action or inaction
of any government instrumentality or public utility, including condemnation,
accidents for which franchisee is not primarily responsible, fire,
flood, or other act of God, sabotage or other events to the extent
that such causes or other events are beyond the reasonable control
of the franchisee, and only to the extent that any such event affects
a franchisee's capacity to perform.
A nonexclusive authorization granted pursuant to this article
to construct, operate, and maintain a cable system along the public
rights-of-way to provide cable service within all or a specified area
of the Town. Any such authorization, in whatever form granted, shall
not mean or include any general license or permit required for the
privilege of transacting and carrying on a business within the Town
as required by the ordinances and laws of the Town, or for attaching
devices to poles or other structures, whether owned by the Town or
a private entity, or for excavating or performing other work in or
along public rights-of-way.
A contract entered into pursuant to this article between
the Town and a franchisee that sets forth, subject to this article,
the terms and conditions under which a franchise will be granted and
exercised.
The area of the Town that a franchisee is authorized or required
to serve by its franchise agreement.
A natural person, partnership, domestic or foreign corporation,
association, joint venture, or organization of any kind that has been
granted a franchise by the Town.
Any channel on a cable system set aside by a franchisee for
government use.
Any and all cash, credits, property or other consideration
of any kind or nature that constitutes revenue in accordance with
generally accepted accounting principles and that arises from or is
attributable to, or in any way derived directly or indirectly by a
franchisee or its affiliates, or by any other entity that is a cable
operator of the franchisee's system to provide cable services except
as hereinafter specifically excluded, and including, without limitation,
to the extent derived from the operation of a franchisee's cable system
to provide cable services in the Town, monthly fees collected from
subscribers from any basic, optional, premium, per-channel, per-program
services, or cable programming service; installation, disconnection,
reconnection, and change-in-service fees; fees, payments, or other
consideration received from programmers for carriage of programming
on a franchisee's cable system; revenues from rentals or sales of
converters or other equipment; studio rental; fees from third-party
unaffiliated programmers for leased access programming; production
equipment, rental fees and personal fees, advertising revenues, net
of normal agency commissions; revenues from the sale or carriage of
other cable services; revenues from leased channel fees; late fees
and administrative fees; fees, payments, or other consideration received
from programmers for carriage of programming on the system; revenues
from internet access services, revenues from home shopping and bank-at-home
channels; and revenues from the sale of cable guides.
Gross revenues shall not include any taxes on services furnished
by a franchisee which are imposed directly on any subscriber or user
by the community or another governmental unit and which are collected
by the franchisee on behalf of said governmental unit. A franchise
fee is not such a tax.
Gross revenues shall not include (i) any consideration paid
by the Town to a franchisee for an institutional network ("I-net"),
or any expense reimbursement paid by the Town or its agents, or by
PEG users, to the franchisee; (ii) any compensation awarded to a franchisee
based on the county's condemnation of property of the franchisee;
(iii) any uncollected receipts (i.e., "bad debt"); provided, however,
that all or any part of any such actual bad debt that is written off
but subsequently collected shall be included in gross revenues in
the period collected. Any amounts includable as gross revenues that
are received by an affiliate or any other entity that is a cable operator
of franchisee's cable system shall not be counted as gross revenues
to the extent that such amounts are also received directly by the
franchisee, to ensure that no such revenue is counted twice.
The connection of system services to subscribers' television
receivers or other subscriber-owned or -provided terminal equipment.
Any channel on a cable system designated or dedicated for
use by a person unaffiliated with the franchisee.
The amount remaining after deducting from gross revenues
all of the actual, direct and indirect expenses associated with operating
the cable system, including the franchise fee, interest, depreciation,
and federal or state income taxes.
Those hours during which most similar businesses in the community
are open to serve customers, including some evening hours at least
one night per week and/or some weekend hours.
Those service conditions that are within the control of a
franchisee. Conditions that are not within the control of a franchisee
include, but are not limited to, natural disasters, civil disturbances,
power outages, telephone network outages, and severe weather conditions.
Conditions that are ordinarily within the control of a franchisee
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 a cable system.
An open video system that complies with 47 U.S.C. § 573,
as amended.
Public, educational and governmental.
An individual, partnership, association, joint-stock company,
organization, corporation, or any lawful successor thereto or transferee
thereof, but such term does not include the Town.
Any person or entity that produces or otherwise provides
program material or information for transmission by video, audio,
digital or other signals, either live or from recorded traces or other
storage media, to users or subscribers by means of a cable system.
Any channel on a cable system set aside by a franchisee for
use by the general public, including groups and individuals, and which
is available for such use on a nondiscriminatory basis.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway,
easement, or similar property within the Town, which, consistent with
the purposes for which it was dedicated, may be used for the purpose
of installing and maintaining a cable system. No reference herein,
or in any franchise agreement, to a "public right-of-way" shall be
deemed to be a representation or guarantee by the Town that its interest
or other right to control the use of such property is sufficient to
permit its use for such purposes, and a franchisee shall be deemed
to gain only those rights to use as are properly in the Town and as
the Town may have the undisputed right and power to give.
Any nonprofit, tax-exempt organization that has as its primary
purpose the provision of services of education, health, civic, charitable,
or similar nature on a Town-wide basis.
A performance bond, letter of credit, or cash deposit, or
any or all of these, to the extent required by a franchise agreement.
Loss of picture or sound on one or more cable channels, as
described in FCC regulations as of December 1, 1998.
Any person who legally receives any service delivered over
a cable system.
The Town of Brentwood, Maryland, and any agency, department,
or agent thereof.
Any transaction in which:
Any ownership or other right, title, or interest cognizable
under FCC regulations of more than 10% in a publicly traded corporation
controlling a franchisee, its cable system, or any person that is
a cable operator of the cable system (or in the franchisee itself,
if it is a publicly traded corporation) is transferred, sold, assigned,
leased, or sublet, directly or indirectly, to an entity that does
not presently control the franchisee; or
Any ownership or other right, title, or interest cognizable
under FCC regulations of 20% or more in an entity other than a publicly
traded corporation controlling a franchisee, its cable system, or
any person that is a cable operator of the cable system (or in the
franchisee itself, if it is an entity other than publicly traded corporation)
is transferred, sold, assigned, leased, or sublet, directly or indirectly,
to an entity that does not presently control the franchisee; or
There is any transfer of control of a franchisee; or
A franchise is transferred to another entity; or
Any change or substitution occurs in the managing general partners
of a franchisee, where applicable; or
A franchisee, or its corporate parents at any level, enters
into any transaction that materially increases the debt that is to
be borne by the system directly or indirectly, in a manner that creates
a risk of an adverse effect on system rates or services.
"Transfer" shall not include transactions in which a franchisee
is reorganized within another corporation owned, owning, or commonly
controlled with the franchisee, if such transaction does not materially
affect the ultimate control of the franchisee or the sources and amounts
of funds available to the franchisee. The term "control" for purposes
of this definition means the legal or practical ability to exert actual
working control over the affairs of the franchisee, either directly
or indirectly, whether by contractual agreement, majority ownership
interest, any lesser ownership interest, or in any other manner.
A person or organization using a channel or equipment and
facilities for purposes of producing or transmitting material, as
contrasted with the receipt thereof in the capacity of a subscriber.
A.
Grant.
(1)
The Town may grant one or more cable franchises, and each such franchise
shall be awarded in accordance with and subject to the provisions
of this article.
(2)
Franchises shall be granted by action of the Council pursuant to
applicable law.
(3)
No person may construct or operate a cable system without a franchise
granted by the Town. No person may be granted a franchise unless such
person has entered into a franchise agreement with the Town pursuant
to this article.
(4)
The definition of "cable system" contained in § 62-8B of this article shall not be deemed to circumscribe or limit the valid authority of the Town to regulate or franchise the activities of any other communications system or provider of communications services to the full extent permitted by law.
(5)
Notwithstanding the definition of "cable system" contained in § 62-8B of this article, any franchise agreement shall define the services any franchisee is authorized to use the public rights-of-way to provide and that agreement shall supersede any inference to the contrary which may arise from the definition of "cable system" contained in § 62-8B of this article.
B.
Term of franchise. No franchise shall be granted for a period of
more than 15 years, except that a franchisee may apply for renewal
or extension pursuant to applicable law.
C.
Franchise characteristics.
(1)
A franchise authorizes use of public rights-of-way for installing
cables, wires, lines, optical fiber, underground conduit, and other
devices necessary and appurtenant to the operation of a cable system
to provide cable service within a franchise area, but does not expressly
or implicitly authorize a franchisee to provide service to, or install
a cable system on, private property without owner consent [except
for use of compatible easements pursuant to 47 U.S.C. § 541(a)(2)
and common law], or to use publicly or privately owned conduits without
a separate agreement with the owners.
(2)
A franchise shall constitute both a right and an obligation to provide
the cable services regulated by the provisions of this article and
the franchise agreement.
(3)
A franchise is nonexclusive and will not explicitly or implicitly
preclude the issuance of other franchises to operate cable systems
within the Town; affect the Town's right to authorize use of public
rights-of-way by other persons to operate cable systems or for other
purposes as it determines appropriate; or affect the Town's right
to itself construct, operate, or maintain a cable system, with or
without a franchise.
(4)
All privileges prescribed by a franchise shall be subordinate to
(without limitation) the Town's use and any prior lawful occupancy
of the public rights-of-way.
(5)
The Town reserves the right to designate where a franchisee's facilities
are to be placed within the public rights-of-way and to resolve any
disputes among users of the public rights-of-way.
D.
Franchisee subject to other laws and police power.
(1)
A franchisee shall at all times be subject to and shall comply with
all applicable federal, state, and local laws. A franchisee shall
at all times be subject to all lawful exercise of the police power
of the Town. Nothing in a franchise agreement shall be deemed to waive
the requirements of the various codes and ordinances of the Town regarding
permits, fees to be paid, or manner of construction.
(2)
No course of dealing between a franchisee and the Town, or any delay
on the part of the Town in exercising of any rights hereunder, or
any acquiescence by the Town in the actions of a franchisee that are
in contravention of such rights (except to the extent such rights
are expressly waived by the Town) shall operate as a waiver of any
such rights of the Town.
(3)
The Town may, from time to time, issue such reasonable rules and
regulations concerning cable systems as are consistent with applicable
law.
E.
Interpretation of franchise terms.
(1)
The provisions of this article and any franchise agreement will be
liberally construed in favor of the Town in order to effectuate their
purposes and objectives and to promote the public interest.
(2)
Subject to federal law or regulation, a franchise agreement will
be governed by and construed in accordance with the laws of the State
of Maryland.
F.
Operation of a cable system without a franchise.
(1)
Effect. Any person who occupies the public rights-of-way of the Town
for the purpose of operating or constructing a cable system or an
OVS and who does not hold a valid franchise (or other authority allowing
such entity to be in the public rights-of-way to provide video services)
from the Town shall nonetheless, to the extent allowable by law, be
subject to all provisions of this article, including but not limited
to its provisions regarding construction and technical standards and
franchise fees.
(2)
Remedy. Any person who occupies the public rights-of-way of the Town
for the purpose of operating or constructing a cable system or an
open video system (OVS) and who does not hold a valid franchise shall
apply for a franchise within 30 days of receipt of a written notice
by the Town that a franchise agreement is required. The Town may,
at its discretion, require such person to remove such person's property
and restore the area to a condition satisfactory to the Town within
a reasonable time period, as the Town shall determine; remove the
property itself and restore the area to a satisfactory condition and
charge the person the costs therefor; and/or take any other action
it is entitled to take under applicable law, including filing for
and seeking damages under trespass. In no event shall a franchise
be created unless it is issued by action of the Mayor and Town Council
and subject to a written franchise agreement.
G.
Acts at franchisee's expense. Any act that a franchisee is or may
be required to perform under this article, a franchise agreement,
or applicable law, including but not limited to removal, replacement,
or modification of the installation of any of its facilities and restoration
to Town standards and specifications of any damage or disturbance
caused to the public rights-of-way as a result of its operations or
construction on its behalf, shall be performed at the franchisee's
expense, unless expressly provided to the contrary in this article,
the franchise agreement, or applicable law.
H.
Eminent domain. Nothing in this article shall be deemed or construed
to impair or affect, in any way or to any extent, the Town's rights
of eminent domain to the extent to which they may apply to any public
utility or cable system.
A.
Application required.
(1)
A written application shall be filed with the Town for grant of an
initial franchise or modification of a franchise agreement pursuant
to 47 U.S.C. § 545.
(2)
To be acceptable for filing, a signed original of the application
shall be submitted together with 12 copies. The application must be
accompanied by any required application filing fee, conform to any
applicable request for proposals, 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.
(3)
All applications accepted for filing shall be made available by the
Town for public inspection.
B.
Application for grant of an initial franchise.
(1)
A person may apply for an initial franchise by submitting an application containing the information required in Subsection C of this section. Upon receipt of such an application, the Town may either:
(a)
Evaluate the application pursuant to Subsection B(3), conducting such investigations as it deems necessary; or
(b)
Issue a request for proposal (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 party. The
RFP may contain a proposed franchise agreement.
(2)
An applicant shall respond to an RFP by filing an application within the time directed by the Town, providing the information and material set forth in Subsection C of this section. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant. Any applicant that has already filed materials pursuant to Subsection B(1) of this section need not refile the same materials with its RFP response, but must amplify its application to include any additional or different materials required by the RFP. The Town or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(3)
In evaluating an application for a franchise, the Town shall consider,
among other things, the following factors:
(a)
Whether, and the extent to which, the applicant has substantially
complied with the applicable law and the material terms of any existing
cable franchise for the Town.
(b)
Whether the quality of the applicant's service under any existing
franchise in the Town, including signal quality, response to customer
complaints, billing practices, and the like, 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 Town and is otherwise reasonable and likely 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 Subsection B(3)(d) of this section, 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)
Whether, and to what extent, granting the application will have
effects on competition in the delivery of cable service in the Town.
(h)
Whether an applicant has filed materially misleading information
in its application or has intentionally withheld information that
the applicant lawfully is required to provide.
(4)
The Town shall provide an opportunity to an applicant to show that
it would be inappropriate to deny it a franchise by virtue of the
particular circumstances surrounding the matter and the steps taken
by the applicant to cure all harms flowing therefrom and prevent their
recurrence, the lack of involvement of the applicant's principals,
or the remoteness of the matter from the operation of cable systems.
(5)
If the Town finds that it is in the public interest to issue a franchise, considering without limitation the factors set forth in Subsection B(3) of this section, and subject to the applicant's entry into an appropriate franchise agreement, it shall issue a franchise.
(6)
If the Town does not find that it is in the public interest to issue a franchise, considering without limitation the factors set forth in Subsection B(3) of this section, it shall deny the franchise application, in which event the Town shall issue a written decision explaining why the franchise was denied.
(7)
Prior to deciding whether or not to issue a franchise, the Town may
hold one or more public hearings or implement other procedures under
which comments from the public on an application may be received.
The Town also may grant or deny a request for a franchise 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.
(8)
This article is not intended and shall not be interpreted to grant
any party standing to challenge the denial of an application or the
issuance of a franchise unless such standing is necessary to enforce
a party's rights under its franchise agreement or applicable law.
C.
Contents of application.
(1)
An
RFP for the grant of an initial franchise shall require, and any such
application shall contain, at a minimum, the following information:
(a)
Name and address of the applicant and identification of the
ownership and control of the applicant, including:
[1]
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;
[2]
The persons who control the applicant and its affiliates;
[3]
All officers and directors of the applicant and its affiliates; and
[4]
Any other business affiliation and cable system ownership interest
of each named person.
(b)
A demonstration of the applicant's technical ability to construct
and/or operate the proposed cable system, including identification
of key personnel.
(c)
A demonstration of the applicant's legal qualifications to construct
and/or operate the proposed cable system, including but not limited
to representations, and factual documentation supporting such representations,
regarding each of the following items:
[1]
Whether an applicant has had previous requests for a franchise
denied by the Town or other franchising authorities.
[2]
Whether the applicant has the necessary authority under Maryland
law to operate a cable system.
[3]
Whether the applicant has the necessary authority under federal
law to hold the franchise and operate a cable system and that the
applicant has, or is qualified to obtain, any necessary federal franchises
or waivers required to operate the system proposed.
[4]
Whether, at any time during the 10 years preceding the submission
of the application, the applicant or any officer, director, partner
or major shareholder thereof was convicted of any act or omission
of such character that the applicant cannot be relied upon to deal
truthfully with the Town and the subscribers of the cable system,
or to substantially comply with its lawful obligations under applicable
law, including obligations under consumer protection laws and laws
prohibiting anticompetitive acts, fraud, racketeering, or other similar
conduct.
[5]
Whether any elected official of the Town holds a controlling
interest in the applicant or an affiliate of the applicant.
(d)
A demonstration of the applicant's financial qualifications
to complete the construction and operation of the cable system proposed.
(e)
A description of any 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.
(f)
Identification of the area of the Town to be served by the proposed
cable system, including a description of the proposed franchise area's
boundaries.
(g)
A detailed description of the physical facilities proposed,
including channel capacity, technical design, performance characteristics,
head end, and access facilities.
(h)
Where applicable, a description of the construction of the proposed
system, including an estimate of plant mileage and its location; the
proposed construction schedule; and a description, where appropriate,
of how services will be converted from existing facilities to new
facilities.
(i)
A demonstration of how the applicant will reasonably meet the
future cable-related needs and interests of the community, including
PEG access channel capacity, facilities, or financial support to meet
the community's needs and interests.
(j)
If necessary, at the Town's discretion, pro forma financial
projections 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.
(k)
Any other information that may be reasonably necessary to demonstrate
compliance with the requirements of this article.
(l)
Any additional information that the Town may reasonably request
of the applicant that is relevant to the Town's consideration of the
application.
(m)
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.
D.
Application for grant of a renewal franchise. The renewal of any
franchise to provide cable service shall be conducted in a manner
consistent with 47 U.S.C. § 546, as from time to time amended.
E.
Application for modification of a franchise. 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 as to whether the modification is sought pursuant to
47 U.S.C. § 545, and, if so, a demonstration that the requested
modification meets the standards set forth in 47 U.S.C. § 545;
(4)
Any other information that the applicant believes is necessary for
the Town 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.
F.
Public hearings. 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. In addition, prior to the issuance
of a franchise, the Town shall provide for the holding of a public
hearing within the proposed franchise area, following reasonable notice
to the public, at which every applicant and its applications shall
be examined and the public and all interested parties afforded a reasonable
opportunity to be heard.
G.
Acceptance of franchise. Following approval by the Town, any franchise
granted pursuant to this article, and the rights, privileges and authority
granted by a franchise agreement, shall take effect and be in force
from and after the first date on which both the franchisee and the
Town have accepted and signed the franchise agreement.
A.
Amount of fee. To be acceptable for filing, any application of a type listed in Subsection B of this section submitted after the effective date of this article shall be accompanied by a nonrefundable filing fee of $5,000, payable to the Town, to cover costs incidental to the awarding or enforcement of the franchise, as appropriate.
C.
Reimbursement of expenses, payments not deemed franchise fees. To
the extent consistent with applicable law:
(1)
The Town may require the franchisee, or, where applicable, a transferor
or transferee, to reimburse the Town for its reasonable out-of-pocket
expenses in considering the application, including consultants' fees.
(2)
No payments made hereunder shall be considered a franchise fee, but
shall be deemed to fall within one or more of the exceptions in 47
U.S.C. § 542(g)(2).
A.
Availability of cable service. A franchisee shall construct and operate
its system so as to provide service, if requested, to all residences
within Town boundaries as they exist on the date of the franchise
agreement. With respect to residences in areas of the Town annexed
thereafter, a franchisee shall construct and operate its systems so
as to provide service to all parts of its franchise area having a
density of at least 20 residences per mile of system. In addition,
all areas which reach such density at any time during the franchise
term shall be provided service upon reaching the minimum density.
B.
Line extension requirement.
(1)
Except as federal law may otherwise require, and subject to the universal service and minimum density requirements specified in Subsection A of this section, a franchisee shall, upon request:
(a)
Extend its trunk and distribution system to any subscriber located
within 250 feet of a main distribution cable located in the public
rights-of-way at its standard installation charge, unless the franchisee
demonstrates to the Town's satisfaction that extraordinary circumstances
exist; and
(b)
Extend its trunk and distribution system to any potential subscriber
outside the two-hundred-fifty-foot limit, provided that the franchisee
may charge the potential subscriber for the cost of the actual length
of the installed drop, or the shortest distance to the point where
the franchisee would be required to extend its distribution system,
whichever is shorter, except where the franchisee has demonstrated
to the Town's satisfaction that extraordinary circumstances exist.
(2)
In areas where the minimum density requirement is not met, or where
extraordinary circumstances exist, a franchisee shall, upon request,
extend its cable system to a potential subscriber, provided that the
subscriber shall pay the additional extension costs.
C.
Cost sharing.
(1)
"Additional extension costs," as used in Subsection B(2) of this section, shall mean a subscriber's pro-rata share of a franchisee's total construction costs at the actual density of affected potential subscribers, less the total construction costs that the franchisee would incur if it were extending its system to make service available to the same number of potential subscribers at a density of 20 residences per mile.
(2)
"Total construction costs" are defined for purposes of this subsection
as the actual turnkey cost to construct the entire extension, including
electronics, pole make-ready charges, and labor, but not the cost
of the house drop.
D.
Continuity of service.
(1)
It is the right of all subscribers in the franchise area to receive
all available services from a franchisee, as those services become
available, as long as their financial and other obligations to the
franchisee are satisfied.
(2)
A franchisee shall ensure that all subscribers receive continuous
uninterrupted service. At the Town's request, a franchisee shall,
as trustee for its successor in interest, operate its system for a
temporary period (the "transition period") following the termination,
sale, or transfer of its franchise as necessary to maintain service
to subscribers, and shall cooperate with the Town to assure an orderly
transition from it to another franchisee.
(3)
During such transition period, a franchisee shall not sell any of
the system assets, nor make any physical, material, administrative
or operational change that would tend to reduce the quality of service
to subscribers, decrease the system's income, or materially increase
expenses without the express permission, in writing, of the Town.
(4)
The Town may seek legal and/or equitable relief to enforce the provisions
of this subsection.
(5)
The transition period shall be no longer than the reasonable period
required to ensure that cable service will be available to subscribers,
and shall not be longer than 36 months, unless extended by the Town
for good cause. During the transition period, a franchisee will continue
to be obligated to comply with the terms and conditions of the agreement
and applicable laws and regulations.
(6)
If a franchisee abandons its system during the franchise term, or
fails to operate its system in accordance with the terms of its franchise
agreement during any transition period, the Town, at its option, may
operate the system, designate another entity to operate the system
temporarily until the franchisee restores service under conditions
acceptable to the Town or until the franchise is revoked and a new
franchisee selected by the Town is providing service, or obtain an
injunction requiring the franchisee to continue operations. If the
Town is required to operate or designate another entity to operate
the cable system, the franchisee shall reimburse the Town or its designee
for all reasonable costs and damages incurred that are in excess of
the revenues from the cable system.
(7)
A franchisee shall forfeit its rights to notice and hearing, and
the Mayor and Town Council may by resolution declare the franchisee's
franchise immediately terminated, in addition to any other relief
or remedies the Town may have under its franchise agreement, this
article, or other applicable law, if:
(a)
The franchisee fails to provide cable service in accordance
with its franchise over a substantial portion of the franchise area
for 96 consecutive hours, unless the Town authorizes a longer interruption
of service or the failure is due to force majeure as characterized
in its franchise agreement; or
(b)
The franchisee, for any period, willfully and without cause
refuses to provide cable service in accordance with its franchise
over a substantial portion of the franchise area.
(8)
No charge shall be made to the Town or any board, bureau or department
of the Town, or any municipal government for use of the government
access channels.
A.
System construction schedule. Every franchise agreement shall specify
the construction schedule, if applicable, that will apply to any required
construction, upgrade, or rebuild of the cable system.
B.
Construction procedures.
(1)
A franchisee shall construct, operate and maintain its cable system
in strict compliance with all applicable laws, ordinances, rules and
regulations, including but not limited to the National Electrical
Safety Code and the National Fire Protection Association National
Electrical Code, as such may be amended from time to time.
(2)
The system, and all parts thereof, shall be subject to the right
of periodic inspection by the Town.
(3)
No construction, reconstruction, installation, or relocation of the
system or any part thereof within the public rights-of-way shall be
commenced until all applicable written permits have been obtained
from the proper Town officials. In any permit so issued, such officials
may impose such conditions and regulations as a condition of the granting
of the permit as are necessary for the purpose of protecting any structures
in the public rights-of-way and for the proper restoration of such
public rights-of-way and structures, and for the protection of the
public and the continuity of pedestrian and vehicular traffic.
(4)
A franchisee shall, by a time specified by the Town, protect, support,
temporarily disconnect, relocate, or remove any of its property when
required by the Town by reason of traffic conditions; public safety;
public right-of-way construction; public right-of-way maintenance
or repair (including resurfacing or widening); change of public right-of-way
grade; construction, installation or repair of sewers, drains, water
pipes, power lines, signal lines, tracks, or any other type of government-owned
communications system, public work or improvement or any government-owned
utility; public right-of-way vacation; or for any other purpose where
the convenience of the Town would be served thereby; provided, however,
that a franchisee shall, in all such cases, have the privilege of
abandoning any property in place, after obtaining permission from
the Town, such permission to be given or withheld in the Town's sole
discretion.
(5)
If any removal, relaying, or relocation is required to accommodate
the construction, operation, or repair of the facilities of another
person that is authorized to use the public rights-of-way, a franchisee
shall, after reasonable advance written notice, take action to effect
the necessary changes requested by the responsible entity. The Town
may resolve disputes as to responsibility for costs associated with
the removal, relaying, or relocation of facilities as among entities
authorized to install facilities in the public rights-of-way if the
parties are unable to do so themselves, and if the matter is not governed
by a valid contract between the parties or a state or federal law
or regulation.
(6)
In the event of an emergency, or where a cable system creates or
is contributing to an imminent danger to health, safety, or property,
the Town may remove, relay, or relocate any or all parts of that cable
system without prior notice.
(7)
A franchisee shall, on the request of any person holding a building
moving permit issued by Prince George's County or the Town, temporarily
raise or lower its wires to permit the moving of buildings. The expense
of such temporary removal or raising or lowering of wires shall be
paid by the person requesting same, and a franchisee shall have the
authority to require such payment in advance, except in the case where
the requesting person is the Town, in which case no such payment shall
be required. A franchisee shall be given notice not less than 72 hours
in advance to arrange for such temporary wire changes.
(8)
A franchisee shall participate in any "miss utility" program active
in its franchise area with regard to giving and receiving notice of
the location of facilities and excavations.
(9)
Wherever all electrical and telephone utility wiring is located underground,
either at the time of initial construction or subsequently, at the
direction of Prince George's County or the Town, the television cable
shall also be located underground at no expense to the Town.
(10)
The franchisee shall utilize existing poles, conduits and other
facilities whenever possible, and shall not construct or install any
new, different, or additional poles, conduits or other facilities,
whether on public property or on privately owned property, until the
written approval of the Town is obtained. However, no location of
any pole or wire-holding structure of the franchisee shall be a vested
interest and such poles or structures shall be removed or modified
by the franchisee at its own expense whenever the Town determines
that the public convenience would be enhanced thereby.
(11)
The franchisee shall have the authority to trim trees on public
property at its own expense as may be necessary to protect its wires
and facilities, subject to the supervision and direction of the Town.
Trimming of trees on private property shall require written consent
of the property owner. All trimming of trees performed by the franchisee
shall be done in accordance with the guidelines of the National Arborist
Association.
(12)
Notwithstanding any other provision of this subsection, a franchisee
shall take all necessary steps to avoid damage to any trees, streets,
and public or private driveways and any public right-of-way.
C.
Restoration. Any and all public rights-of-way, public property or
private property that is disturbed or damaged during the construction,
repair, replacement, relocation, operation, maintenance or construction
of a cable system shall be repaired, replaced and restored, as appropriate,
in substantially the same condition and in a good workmanlike, timely
manner, in accordance with the standards for such work set by the
Town. With respect to damage or disturbances to public rights-of-way,
public property, or private property, all repairs and restoration
shall be performed in accordance with any applicable state, county
or Town law or regulation. All repairs, replacements and restoration
shall be undertaken within no more than 30 days after the damage is
incurred, and shall be completed as soon as reasonably possible. A
franchisee shall guarantee and maintain such restoration for at least
one year against defective materials or workmanship or cuts or cracks
in pavement surfaces or until such time as pavement is overlaid, whichever
is longer.
D.
Use of public property.
(1)
Should the grades or lines of the public rights-of-way that the franchisee
is authorized by a franchise to use and occupy be changed at any time
during the term of a franchise, the franchisee shall, if necessary,
relocate or change its system so as to conform with the new grades
or lines at no cost or expense to the Town.
(2)
Any alteration to the water mains, sewerage or drainage system or
to any Town, county, state or other public structures in the public
rights-of-way required on account of the presence of a franchisee's
system in the public rights-of-way shall be made at the sole cost
and expense of the franchisee. During any work of construction, operation
or maintenance work on a system, the franchisee shall also protect
any and all existing structures belonging to the Town or to any other
person. All work performed by the franchisee shall be done in the
manner prescribed by the Town or other officials having jurisdiction
therein.
E.
Interference with public projects. Nothing in this article or any
franchise agreement shall be in preference or hindrance to the right
of the Town and any board, authority, commission or public service
corporation to perform or carry on any public works or public improvements
of any description, and should a franchisee's system in any way interfere
with the construction, maintenance or repair of such public works
or public improvements, the franchisee shall protect or relocate its
system, or part thereof, as reasonably directed by any Town official,
board, authority, commission or public service corporation.
A.
Management of channels. The Town may designate one or more entities,
including a nonprofit access management corporation, to perform any
or all of the following functions:
(1)
To manage any necessary scheduling or allocation of capacity on the
institutional network; and/or
(2)
On the Town's behalf, to program any public, educational, or governmental
access channel. Educational and public access channels shall not be
managed by the same entity; provided, however, that until such entities
have been designated, the Town shall be responsible for these functions.
B.
Public access programming rules. For any public access channel, the
entity managing such channel shall establish:
(1)
Rules
that prohibit the presentation of any advertising material designed
to promote the sale of commercial products or services (including
advertising by or on behalf of candidates for public office), lottery
information, and obscene matter;
(2)
Rules
requiring first-come, nondiscriminatory access; and
(3)
Rules
permitting public inspection of the complete record of the names and
addresses of all persons and groups requesting access time. Such a
record shall be retained for a period of two years.
C.
Use of access channels. PEG access channels shall be for the noncommercial
use of the Town and shall be available at no expense to the Town and
to PEG access users.
A.
General provisions. A franchisee must satisfy the customer service
standards set forth in this section. In addition, the franchisee shall
at all times satisfy any additional or stricter requirements established
by FCC regulations, or other applicable federal, state, or local law
or regulation, as the same may be amended from time to time.
B.
Construction of section.
(1)
Nothing in this section may be construed to prevent or prohibit the
Town from the following:
(a)
Agreeing with a franchisee on customer service requirements
that exceed the standards set forth in this article;
(b)
Enforcing, through the end of a franchise term, preexisting
customer service requirements that exceed the standards set forth
in this article and are contained in current franchise agreements;
(c)
Enacting or enforcing any customer service or consumer protection
laws or regulations; or
(d)
Waiving, for good cause, requirements established in this section.
(2)
Nothing in this article in any way relieves a franchisee of its obligation
to comply with other applicable consumer protection laws and its franchise
agreement.
C.
Installations, connections, and other franchisee services.
(1)
Installation of drops. A subscriber's preference as to the point
of entry into a residence shall be observed whenever feasible. Runs
in building interiors shall be as unobtrusive as possible. A franchisee
shall use due care in the process of installation and shall repair
any damage to a subscriber's property caused by said installation.
Such restoration shall be undertaken within 30 days after the damage
is incurred and shall be completed as soon as reasonably possible
thereafter.
(2)
Location of drops. In locations where a franchisee's system must
be underground, drops must be placed underground as well. In all cases
where new developments and subdivisions are to be constructed and
to be served in whole or in part by underground power and telephone
utilities, the owner or developer of such areas shall provide reasonable
notice to the franchisee of the availability of trenches, backfill
and specifications of all necessary substructures in order that the
franchisee may install all necessary cable facilities. In no event
shall such location of cable facilities underground be at any cost
or expense to the Town.
(3)
Time for extension/installation. Where a franchisee is required under § 62-12B(1)(a) of this article to provide service to a person that resides within 250 feet from the franchisee's distribution system, the franchisee must provide such service within seven business days of the person's request. If the person resides more than 125 feet from the franchisee's distribution system, the Town may waive this seven-day requirement upon a showing of good cause by the franchisee and provided the franchisee specifies the time period within which service will be provided. This standard shall be met 95% of the time, measured on a quarterly basis.
(4)
Antennas and antenna switches. A franchisee shall adhere to FCC regulations
regarding antenna switches. A franchisee shall not, as a condition
to providing cable service, require any subscriber or potential subscriber
to remove any existing antenna structures for the receipt of over-the-air
television signals.
(5)
Delinquent accounts. A franchisee shall use its best efforts to collect
on delinquent subscriber accounts before terminating service. In all
cases, the franchisee shall provide the customer with at least 10
working days' written notice prior to disconnection.
D.
Telephone and office availability.
(1)
Each franchisee shall maintain offices at locations convenient to
subscribers or as specified in its franchise agreement, that shall
be open during normal business hours to allow subscribers to request
service, pay bills, and conduct other business.
(2)
Each franchisee shall maintain at least one local, toll-free or collect
call telephone access line which will be available to subscribers
24 hours a day, seven days a week. Trained representatives of a franchisee
shall be available to respond to subscriber telephone inquiries during
normal business hours.
(3)
Each franchisee shall be subject to the following standards, except
that such franchisee shall not be subject to penalty as long as it
meets such standards under normal operating conditions at least 90%
of the time, measured quarterly:
(a)
Telephone answering time shall not exceed 30 seconds, and the
time to transfer the call to a customer service representative (including
hold time) shall not exceed an additional 30 seconds.
(b)
A customer will receive a busy signal less than 3% of the time.
(c)
When the business office is closed, an answering service where
a person receives and records service complaints and inquiries shall
be employed. Inquiries received after hours must be responded to by
a trained representative of a franchisee on the next business day.
To the extent possible, the after-hours answering service shall comply
with the same telephone answer time standard set forth in this subsection.
(4)
In any case, at all times a franchisee shall provide an answering
machine so that callers will have the option to leave messages.
(5)
A franchisee must hire sufficient competent customer service representatives
and repair technicians so that it can adequately respond to customer
inquiries, complaints, and requests for service in its office, over
the phone, and at a subscriber's residence; provide prompt and effective
service to subscribers; and, as a rule, complete repairs within a
subscriber's home upon a single visit.
E.
Scheduling and completing service. Under normal operating conditions,
each of the following standards shall be met by all franchisees at
least 95% of the time, as measured on a quarterly basis:
(1)
Prompt service. Excluding conditions beyond the control of the franchisee,
repairs and maintenance for service interruptions must begin promptly
and in no event later than 24 hours after the subscriber reports the
problem to the franchisee or its representative or the interruption
or need for repairs otherwise becomes known to the franchisee. All
such work must be completed within three days from the date of the
initial request, except installation requests, provided that a franchisee
shall complete the work in the shortest time possible where, for reasons
beyond the franchisee's control, the work could not be completed in
those time periods even with the exercise of all due diligence; the
failure of a franchisee to hire sufficient staff or to properly train
its staff shall not justify a franchisee's failure to comply with
this provision.
(2)
Service times. A franchisee shall perform service calls, installations,
and disconnects at least during normal business hours. In addition,
maintenance service capability enabling the prompt location and correction
of major system malfunctions shall be available Monday through Friday
from the end of normal business hours until 12:30 a.m., and from 8:00
a.m. until 12:30 a.m. on Saturdays, Sundays, and holidays.
(3)
Appointments. The appointment window for installations, service calls,
and other installation activities shall be during normal business
hours, either at a specific time or within a specified period of no
longer than two hours' duration, or such greater duration as the Town
may authorize. Where a subscriber cannot conveniently arrange for
a service call or installation during normal business hours, a franchisee
shall also schedule service and installation calls outside normal
business hours for the express convenience of the subscriber.
(4)
Cancellations. A franchisee may not cancel an appointment with a
subscriber after the close of business on the business day preceding
the appointment. If a franchisee's representative will be late for
a scheduled appointment with a subscriber or will not be able to keep
the appointment, the franchisee shall contact the subscriber and reschedule
the appointment, as necessary, at a time which is convenient for the
subscriber.
(5)
Emergency maintenance. A franchisee shall keep an emergency system
maintenance and repair staff, capable of responding to and repairing
system malfunctions or interruptions on a twenty-four-hour basis.
(6)
Other inquiries. Under normal operating conditions, billing inquiries
and requests for service, repair, and maintenance not involving service
interruptions must be acknowledged by a trained customer service representative
within 24 hours, or prior to the end of the next business day, whichever
is earlier. A franchisee shall respond to all other inquiries within
five business days of the inquiry or complaint.
(7)
Missed appointments. If a subscriber experiences a missed appointment
due to the fault of a franchisee, the franchisee shall credit the
subscriber's account in the amount of $20 for each missed appointment,
or grant the subscriber such other equivalent remedy as the subscriber
and franchisee may agree upon. The credit or compensation required
by this subsection is in addition to any other penalties or liquidated
damages to which the franchisee may be subject.
(8)
Pickup and replacement of equipment. Upon subscriber request, a franchisee
shall arrange for pickup and/or replacement of converters or other
franchisee equipment at the subscriber's address or by a satisfactory
equivalent (such as the provision of a postage-prepaid mailer). At
a subscriber's request, a franchisee shall make such pickup or replacement
at the same time as any disconnection or other related service call,
so as to avoid an additional visit. If a franchisee charges a fee
for such pickup or replacement, such fee shall be clearly disclosed
at the time of the subscriber's request.
F.
Interruptions of service.
(1)
A franchisee shall, when practicable, schedule and conduct maintenance
on its cable system so that interruption of service is minimized and
occurs during periods of minimum subscriber use of the cable system.
The franchisee shall provide reasonable prior notice to subscribers
and the Town before interrupting service for planned maintenance or
construction, except where such interruption is expected to be one
hour or less in duration. Such notice shall be provided by methods
reasonably calculated to give subscribers actual notice of the planned
interruption.
(2)
A franchisee may intentionally interrupt service on the cable system
after 7:00 a.m. and before 1:00 a.m. only with good cause and for
the shortest time possible and, except in emergency situations, only
after publishing notice of service interruption at least 24 hours
in advance of the service interruption. Service may be intentionally
interrupted between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance,
and repair, without notification, on any night except Friday, Saturday,
or Sunday, or the night preceding a holiday.
G.
Notice to subscribers.
(1)
Unless otherwise provided for herein, a franchisee shall provide
the following materials to each subscriber at the time cable service
is installed, at least annually thereafter, and at any time upon request.
Copies of all such materials provided to subscribers shall also be
provided to the Town.
(a)
A written description of products and services offered, including
a schedule of rates and charges, a list of channel positions, and
a description of programming services, options, and conditions.
(b)
A written description of the franchisee's installation and service
maintenance policies, delinquent subscriber disconnect and reconnect
procedures, and any other of its policies applicable to its subscribers.
(c)
Written instructions on how to use the cable service.
(d)
Written instructions for placing a service call.
(e)
A written description of the franchisee's billing and complaint
procedures, including the address and telephone number of the Town
office responsible for receiving subscriber complaints.
(f)
A copy of the service contract, if any (at installation or on
request, but need not be provided annually).
(g)
Notice regarding subscribers' privacy rights pursuant to 47
U.S.C. § 551.
(h)
Notice of the availability of universal remote controls and
other compatible equipment (a list of which, specifying brands and
models, shall be provided to any subscriber upon request).
(2)
Subscribers will be notified of any changes in rates, programming
services or channel positions, and any significant changes in any
other information required to be provided by this section, as soon
as possible in writing, unless such notice is waived by operation
of applicable law. Notice must be given to subscribers a minimum of
30 days in advance of such changes if the change is within the control
of the cable operator. Notwithstanding the above, a cable operator
shall not be required to provide prior notice of any rate change that
is the result of a regulatory fee, franchise fee, or any other fee,
tax, assessment, or charge of any kind imposed by any federal agency,
state, or franchising authority on the transaction between the operator
and the subscriber.
(3)
All franchisee promotional materials, announcements, and advertising
of residential cable service to subscribers and the general public,
in which price information is listed in any manner, shall clearly
and accurately disclose price terms. In the case of pay-per-view or
pay-per-event programming, all promotional materials must clearly
and accurately disclose price terms; and in the case of telephone
orders, a franchisee shall take appropriate steps to ensure that price
terms are clearly and accurately disclosed to potential customers
before the order is accepted.
(4)
Copies of all notices provided to subscribers under these customer
service standards, as well as all promotional or special offers made
to subscribers, and of any agreements used with subscribers, shall
be filed promptly with the Town.
H.
Billing.
(1)
Bills shall be clear, concise, and understandable. Bills must be
fully itemized with itemizations including, but not limited to, basic
service, cable programming service, and premium service charges and
all equipment charges. Bills shall clearly delineate all activity
during the billing period, including optional charges, rebates, and
credits.
(3)
Credits for service shall be issued no later than the subscriber's
next billing cycle following the determination that a credit is warranted.
(4)
A franchisee's first billing statement after a new installation or
service change shall be prorated as appropriate and shall reflect
any security deposit.
(5)
Late fees will not be assessed for payments after the due date until
45 days after the beginning of the service period for which the payment
is to be rendered. In addition, subscribers will receive the benefit
of any change in the late fee amount, and of any increases in the
time allowed before assessment of late fees, that may result from
litigation over late fees pending as of the effective date of this
article.
(6)
A franchisee must notify the subscriber that he or she can remit
payment in person at the franchisee's business office and inform the
subscriber of the address of that office.
(7)
Subscribers shall not be charged a late fee or otherwise penalized
for any failure by a franchisee, including failure to timely or correctly
bill the subscriber, or failure to properly credit the subscriber
for a payment timely made.
(8)
A subscriber who asks a franchisee for credit for an outage shall
receive credit for the actual time period of the outage as a pro-rata
fraction of the monthly charges for any outage lasting between two
hours and six hours, without reference to the time the subscriber
contacts the franchisee. A subscriber shall receive credit for one
full day's monthly charges for any outage of between six hours and
24 hours, whether or not the subscriber reports such an outage, if
the franchisee becomes aware of such outages, either through reports
by subscribers or otherwise. Each franchisee shall place a message
in subscribers' bills at least quarterly, explaining how to report
an outage, how to obtain a credit, and under what conditions credits
are available. A franchisee shall also establish a mechanism by which
subscribers may reliably and immediately contact the franchisee by
telephone and report an outage for credit purposes, either by ensuring
that they can reliably and immediately reach a live person or by another
method (for example, by leaving a voice message or entering the subscriber's
telephone number). Upon receiving such reports, the franchisee shall
promptly contact the subscriber to confirm that the report has been
received, and apply the credit to the subscriber's bill unless the
franchisee reasonably concludes that the subscriber's report is false.
(9)
Franchisee shall respond to all written billing complaints from subscribers
within 30 days.
I.
Disconnection and downgrades.
(1)
A subscriber may terminate service at any time.
(2)
A franchisee shall promptly disconnect or downgrade any subscriber's
service at such subscriber's request. No period of notice prior to
voluntary termination or downgrade of service may be required of subscribers
by any franchisee. So long as the subscriber returns, or permits the
franchisee to retrieve, any equipment necessary to receive a service
within five business days of the disconnection, no charge may be imposed
by any franchisee for any cable service delivered after the date of
the disconnect request.
(3)
A subscriber may be asked, but not required, to disconnect a franchisee's
equipment and return it to the business office.
(4)
Any funds due a subscriber on disconnected accounts shall be refunded
after any equipment provided by the franchisee has been recovered
from the customer's premises by the franchisee. The refund must be
made within 30 days or by the end of the next billing cycle, whichever
is earlier, from the date disconnection was requested (or, if later,
the date on which any customer premises equipment provided by the
franchisee is returned).
(5)
If a subscriber fails to pay a monthly subscriber fee or other fee
or charge, a franchisee may disconnect the subscriber's service; however,
such disconnection shall not be effected until at least 45 days after
the bill is due, plus at least 10 days' advance written notice to
the subscriber of the franchisee's intent to disconnect the subscriber's
service, but in no event before the date when the franchisee would
be entitled to charge a late fee. If the subscriber pays all amounts
due, including late charges, before the date scheduled for disconnection,
the franchisee shall not disconnect service. After disconnection,
upon payment by the subscriber in full of all proper fees or charges,
including the payment of the reconnection charge, if any, the franchisee
shall promptly reinstate service.
(6)
A franchisee may immediately disconnect a subscriber's service if
the subscriber is damaging or destroying the franchisee's cable system
or equipment. After disconnection, the franchisee shall restore service
if the subscriber provides adequate assurance that he or she has ceased
the practices that led to disconnection and has paid all proper fees
and charges, including any reconnection fees and amounts owed the
franchisee for damage to its cable system or equipment.
(7)
A franchisee may also disconnect service to a subscriber who causes
signal leakage in excess of federal limits. A franchisee may disconnect
a subscriber's service without notice to the subscriber where signal
leakage is detected originating from the subscriber's premises in
excess of federal limits, provided that the franchisee shall immediately
notify the subscriber of the problem and, once the problem is corrected,
reconnect the subscriber.
(8)
The disposition of cable home wiring in residential single-family
homes shall be governed by FCC rules regarding cable home wiring as
of December 1, 1998.
(9)
A franchisee shall reconnect service to customers wishing restoration
of service, provided such a customer shall first satisfy any previous
obligations owed.
J.
Changes in service.
(1)
At the time a franchisee alters the service it provides to a class
of subscribers, it must provide notice to each subscriber 30 days
in advance, which notice shall explain the substance and full effect
of the alteration and provide the subscriber the right to opt to receive
any combination of services thereafter offered by franchisee.
(2)
No charge may be made for any service or product that the subscriber
has not affirmatively indicated he or she wishes to receive.
K.
Program blocking option. A franchisee shall make available to any
subscriber, upon request, the option of blocking the video or audio
portion of any channel or channels of programming entering the subscriber's
home. The control option described herein shall be made available
when any cable service is provided, or reasonably soon thereafter.
L.
Enforcement.
(1)
A franchisee shall keep such records as are necessary to show compliance
with these customer service standards and FCC customer service standards.
(2)
The Town shall have the right to observe and inspect a franchisee's
customer service procedures.
(3)
Except as prohibited by federal law, a franchisee shall be subject
to penalties, forfeitures and any other remedies or sanctions available
under federal, state or local law, including without limitation this
article and a franchisee's franchise with the Town, if it fails to
comply with the standards herein.
(4)
A franchisee shall not be subject to penalties or liquidated damages
as a result of any violations of these customer service standards
that are due to force majeure as characterized in its franchise agreement.
M.
Anticompetitive acts prohibited.
(1)
No franchisee or OVS operator shall demand the exclusive right to
provide cable service to a person or location as a condition of extending
cable service or a cable system. This provision is not intended and
shall not be interpreted:
(2)
No franchisee or OVS operator shall engage in unfair methods of competition
or unfair or deceptive acts or practices, the purpose or effect of
which is to hinder significantly or to prevent any multichannel video
programming distributor, as defined in federal law, from providing
cable service or services similar to cable service in the Town. This
provision does not apply to methods, acts or practices allowed by
federal or state law. Any allegation that a franchisee has engaged
in methods, acts or practices that would be prohibited by this subsection
will be considered by the Town only after exhaustion of federal remedies.
This subsection is not intended to create a private cause of action.
A.
Legal authority.
(1)
The Town shall enforce the rate regulations promulgated by the FCC
in 47 CFR 76.922 et seq. for the establishment of initial basic cable
service and associated equipment rates and for basic cable service
and associated equipment rate increases. The authority shall further
enforce the provisions of this article and any franchise agreement
issued pursuant thereto with respect to customer service and consumer
protection standards.
(2)
With regard to the cable programming service tier, as defined by
the Cable Act and the FCC rules and regulations, and over which the
Town is not empowered to exercise rate regulation, the cable operator
shall give notice to the Town of any change in rates for the cable
programming service tier or tiers, any change in the charge for equipment
required to receive the tier or tiers, and any changes in the nature
of the services provided, including the program services included
in the tier or tiers, any change in the charge for equipment required
to receive the tier or tiers, and any changes in the nature of the
services provided, including the program services included in the
tier or tiers. The cable operator shall provide such notice 30 days
before the changes are to become effective.
B.
Submission. The franchisee shall submit all rate filings on the proper
federal forms. All Town rate proceedings shall be consistent with
the rules and regulations promulgated by the FCC.
C.
Notice. Following the receipt by the Town of the franchisee's request
for review of its existing rates for the basic service tier and associated
equipment costs, or the franchisee's request for a proposed increase
in these rates, or following the receipt by the Town of information
indicating that a violation of any customer service or consumer protection
standards imposed by this article or by any franchise agreement issued
pursuant to this article may have occurred, the Town shall hold a
public hearing prior to making a final decision on the request for
rate review. The public hearing shall be held to provide the franchisee
and all other interested persons an opportunity to be heard concerning
the request.
D.
Effective date of rates; tolling orders. The existing rates will
remain in effect or the proposed rates, as appropriate, will become
effective after 30 days from the date of receipt of the request; provided,
however, that, if the Town is unable to reach a decision, based upon
the material submitted by the franchisee, it may toll the thirty-day
deadline by issuing a brief written order within the thirty-day period
explaining that it needs additional time to request and/or consider
additional information or to consider the comments from interested
persons. The Town may request an additional 90 days in cases not involving
cost-of-service showings, or an additional 150 days in cases involving
cost-of-service showings. The proposed rates shall go into effect
or existing rates will remain in effect, as appropriate, at the end
of the ninety- or one-hundred-fifty-day period, subject to refunds,
if the Town issues a subsequent written decision disapproving any
portion of such rates. In order to issue such refunds, the Town must
issue a brief written order to the franchisee by the end of the ninety-
or one-hundred-fifty-day period, directing the franchisee to keep
an accurate account of all amounts received by reason of the rate
in issue and on whose behalf such amounts were paid. The maximum one-hundred-eighty-day
period may be extended by mutual agreement of the Town and the franchisee.
E.
Proceedings.
(1)
Any proceeding conducted by the Town under this section shall provide
a reasonable opportunity for consideration of the views of any interested
party, including, but not limited to, the Town Council or its designee,
the franchisee or cable operator, subscribers and residents of the
franchise area.
(2)
The Town may require such additional testimony or evidence including
technical data as it deems necessary to its determination.
(3)
The Town shall conduct its proceedings in accordance with rules and
regulations adopted by the FCC. The Town shall maintain a record of
all testimony, evidence and written submissions in its proceedings.
(4)
The Town may exercise all powers under the laws of evidence applicable
to administrative proceedings under the laws of the State of Maryland
to discover any information relevant to the rate regulation proceeding,
including, but not limited to, subpoenas, interrogatories, production
of documents and depositions.
(5)
The Town may require the attendance as a witness of one or more representatives
of the cable operator.
(6)
The Town shall have authority to administer oaths and affirmations;
issue subpoenas; examine witnesses; rule upon questions of evidence;
take or cause depositions to be taken; and issue notices and orders,
take actions and make decisions or recommendations in conformity with
this article.
F.
Additional information; confidentiality. In addition to any material
or evidence submitted by any party at the hearing, the Town may require
a franchisee to submit any additional information it reasonably deems
necessary to its decision. A franchisee, upon submitting information
required to be produced in the course of a rate proceeding, may request
that such information not be made routinely available for public inspection.
The franchisee must identify information it claims is confidential
and explain why it is confidential. If the request for confidentiality
is denied, the franchisee has five working days to seek a review of
that decision from the FCC.
G.
Schedule of fees and charges.
(1)
A franchisee shall publish and make available to each potential subscriber
a schedule of all applicable fees and charges for providing cable
television service and must notify subscribers that basic cable service
is available. Said notification shall include the following information:
(2)
The franchisee shall provide written notice to subscribers and the
franchise authority of any change in the price to be charged for the
basic service tier or associated equipment, together with any proposed
changes in programming services or channel positions, at least 30
days before any proposed changes in programming services or channel
positions, at least 30 days before any proposed change is effective.
The notice should include the name and address of the franchising
authority.
H.
Waiver, reduction or suspension of fees. A franchisee may, at its
own discretion, waive, reduce, or suspend connection fees for specific
or indeterminate periods and/or monthly service fees for periods not
to exceed 30 days for promotional purposes, where allowed by federal
regulations. The franchisee shall not, with regard to fees, discriminate
or grant any preference or advantage to any person; provided, however,
that the franchisee may establish a uniform bulk discount rate structure
for basic cable service and associated equipment provided to 10 or
more dwelling units within an apartment building, condominium, garden
apartment, or, townhouse complex under common ownership, or to 10
or more room units within hotels and motels, or to commercial establishments
engaged in the sale of television receivers. The franchisee may offer
reasonable discounts to senior citizens or other economically disadvantaged
group discounts.
I.
Decision of the Town. Upon completion of the rate proceedings, the
Town shall with reasonable promptness adopt a written decision. All
changes in subscriber fees shall be determined by the Town in accordance
with the federal regulations.
J.
Remedies. In addition to any other penalties contained in this article,
the Town may:
(1)
Order the franchisee to implement a reduction in basic service tier
or associated equipment rates where necessary to bring rates into
compliance with the federal standards.
(2)
Prescribe a reasonable rate for the basic service tier or associated
equipment after it determines that a proposed rate is unreasonable.
(3)
Order the franchisee to refund to subscribers that portion of previously
paid rates determined to be in excess of the permitted tier charge
or above the actual cost of equipment, unless the franchisee has submitted
a cost-of-service showing which justifies the rate charged as reasonable.
The Town shall give the franchisee notice and an opportunity to comment
prior to ordering the franchisee to refund previously paid rates.
The franchisee's liability for refunds is limited to a one-year period,
except that a franchisee that fails to comply with a valid rate order
shall be liable for refunds commencing from the effective date of
such order until such time as it complies with such order.
K.
Nondiscrimination.
(1)
Subject to applicable law, a franchisee shall establish rates that
are nondiscriminatory within the same general class of subscribers
and which must be applied fairly and uniformly to all subscribers
in the franchise area for all services. Nothing contained herein shall
prohibit a franchisee from offering, by way of illustration and not
limitation:
(2)
The provisions of this section shall apply to all rates, whether
or not they are otherwise subject to rate regulation, except to the
extent specifically prohibited by law.
A.
Finding. The Town finds that public rights-of-way of the Town to
be used by a franchisee for the operation of a cable system are valuable
public property acquired and maintained by the Town. The Town further
finds that the grant of a franchise to use public rights-of-way is
a valuable property right without which a franchisee would be required
to invest substantial capital.
B.
Payment of franchise fee. Each franchisee shall pay a franchise fee
of 5% of gross revenues.
C.
Method of payment. The franchisee shall file with the Town, within
30 days after the expiration of each of the franchisee's fiscal quarters,
a financial statement clearly showing the gross revenues received
by the franchisee during the preceding quarter. The quarterly portion
of the franchise fee shall be payable to the Town at the time such
statement is filed.
D.
Not a tax or in lieu of any other tax or fee.
(1)
Payment of the franchise fee shall not be considered a tax or in
lieu of other taxes or fees of general applicability imposed by the
Town. The franchise fee is in addition to all other taxes and payments
that a franchisee may be required to pay under its franchise agreement
or any federal, state, or local law, and to any other tax, fee, or
assessment imposed by utilities and cable operators for use of their
services, facilities, or equipment, including any applicable amusement
taxes, except to the extent that such fees, taxes, or assessments
must be treated as a franchise fee under 47 U.S.C. § 522.
(2)
No franchisee may designate the franchise fee as a tax in any communication
to a subscriber.
E.
Late payments. In the event any franchise fee payment or recomputation
amount is not made on or before the required date, the franchisee
shall pay additional compensation and interest charges computed from
such due date, at an annual rate equal to the commercial prime interest
rate of the Town's primary depository bank during the period such
unpaid amount is owed, in addition to any applicable penalties or
liquidated damages.
F.
Audit.
(1)
The Town shall have the right to inspect records, to require a franchisee
to provide copies of records at the franchisee's expense, and to audit
and to recompute any amounts determined to be payable, whether the
records are held by the franchisee, an affiliate, or any other entity
that collects or receives funds related to the franchisee's operation
in the Town, including, but not limited to, any entity that sells
advertising on the franchisee's behalf, for a period of five years
from the date a payment was made or, if no payment was made, from
the date on which the Town believes payment was owed, after which
time all payments are final.
(2)
A franchisee shall be responsible for providing to the Town all records
necessary to confirm the accurate payment of franchise fees, without
regard to who holds such records. Such records shall be made available
pursuant to the requirements of this article. The franchisee shall
maintain such records for the term of its franchise agreement and
any renewals or extensions thereof.
(3)
The Town's audit expenses shall be borne by the Town unless the audit
discloses an underpayment of 5% or more of the amount due, in which
case the costs of the audit shall be borne by the franchisee as a
cost incidental to the enforcement of the franchise. Any additional
amounts due to the Town as a result of the audit shall be paid within
30 days following written notice to the franchisee by the Town of
the underpayment, which notice shall include a copy of the audit report.
If recomputation results in additional fees to be paid to the Town,
such amount shall be subject to an interest charge of 10%.
G.
No accord or satisfaction. No acceptance of any payment by the Town
shall be construed as a release or an accord and satisfaction of any
claim the Town may have for further or additional sums due or for
the performance of any other obligation of a franchisee, or as an
acknowledgement that the amount paid is the correct amount due.
A.
Open books and records.
(1)
The Town shall have the right to inspect records and to require a
franchisee to provide copies of records at the franchisee's expense
at any time during normal business hours at Town Hall. The records
to which this section refers shall include all books, receipts, maps,
plans, contracts, service complaint logs, performance test results,
records of requests for service, computer records, disks or other
storage media and other like material which the Town deems appropriate
in order to monitor compliance with the terms of this article, the
Town's franchise agreement, or applicable law. The records include
not only the books and records of a franchisee, but also any books
and records which the Town reasonably deems relevant which are held
by an affiliate, a cable operator of the cable system, or any contractor,
subcontractor or any person holding any form of management contract
for the cable system. A franchisee is responsible for collecting the
information and producing it at the location specified above, and
by accepting its franchise it affirms that it can and will do so.
A franchisee will be given reasonable advance written notice of any
inspection request, which shall serve as notice that any or all of
the above materials may be inspected.
(2)
A franchisee shall maintain financial records that allow analysis
and review of its operations in each individual franchise area.
(3)
Access to a franchisee's records shall not be denied by such franchisee
on the basis that said records contain "proprietary" information.
Refusal to provide information required by this section to the Town
shall be grounds for revocation. All confidential information received
by the Town shall remain confidential insofar as permitted by law.
(4)
A franchisee shall maintain a file of records open to public inspection
in accordance with applicable FCC rules and regulations.
(5)
Each report filed by a franchisee pursuant to this article shall
be certified by a corporate officer as accurate or complete.
B.
Communication with regulatory agencies.
(1)
A franchisee shall file with the Town, in a form acceptable to the
Town, all reports and materials submitted to the FCC, the Securities
and Exchange Commission, or any other federal or state regulatory
commission or agency, including, but not limited to, any proof of
performance tests and results, equal employment opportunity reports,
and all petitions, applications, and communications of all types regarding
the cable system, or a group of cable systems of which the franchisee's
cable system is a part, submitted by the franchisee, an affiliate,
or any other person on the behalf of the franchisee.
(2)
Materials filed with the Town pursuant to Subsection B(1) of this section shall be filed with the Town at the time they are submitted to the receiving agency.
(3)
Upon accepting the franchise, the franchisee shall, within 60 days, file the documents required to obtain all necessary federal, state and local licenses, permits and authorizations required for the conduct of its business and shall submit monthly reports to the Town Administrator on progress in this respect until all such documents are in hand. Within three months after receipt of a certificate of compliance from the FCC, the franchisee shall provide to the Town Administrator a construction schedule, if applicable, and map, setting forth target dates by area for commencement of service to subscribers. The schedule and map shall be updated whenever substantial changes become necessary. The franchisee shall complete construction of the system throughout the franchise territory within three years, so that the system shall be capable of conforming with the availability of service requirements set forth in § 62-12 of this article.
C.
Annual report. Unless this requirement is waived in whole or in part
by the Town, by April 1 of each year for the previous calendar year,
a franchisee shall submit a written report to the Town, in a form
directed by the Town, which shall include:
(1)
A summary of the previous year's activities in development of the
cable system, including but not limited to descriptions of services
begun or discontinued, the number of subscribers gained or lost for
each category of service, the number of pay units sold, the amount
collected annually from users of the system, and the character and
extent of the services rendered to such users, including leased access
channel users.
(2)
A summary of complaints, identifying both the number and nature of
the complaints received and an explanation of their dispositions,
to the extent such records are kept by the franchisee. Where complaints
involve recurrent system problems, the nature of each problem and
the corrective measures taken shall be identified.
(3)
A report showing the number of service calls received by type during
the prior quarter, and the percentage of service calls compared to
the subscriber base by type of complaint.
(4)
A certification of compliance with applicable customer service standards.
If a franchisee is in noncompliance with any standard during any calendar
quarter, it shall include in its annual filing a statement specifying
the areas of noncompliance, the reason for the noncompliance, and
a remedial plan.
(5)
A copy of the franchisee's rules and regulations applicable to subscribers
of the cable system.
(6)
An annual statement showing the yearly gross revenues, prepared and
audited by a certified public accountant acceptable to the Town.
(7)
An annual financial report for the previous calendar year, audited
and certified by an independent certified public accountant, including
year-end balance sheet; income statement showing subscriber revenue
from each category of service and every source of nonsubscriber revenue,
line-item operating expenses, depreciation expense, interest expense,
and taxes paid; statement of sources and applications of funds; capital
expenditures; and depreciation schedule.
(8)
An annual list of officers and members of the board of directors
or similar controlling body of the franchisee and any affiliates.
(9)
An organizational chart showing all corporations or partnerships
with more than a five-percent ownership interest in the franchisee,
and the nature of that ownership interest (such as, for example, limited
partner, general partner, or preferred shareholder); and showing the
same information for each corporation or partnership that holds such
an interest in the corporations or partnerships so identified and
continuing to identify such interests until the ultimate corporate
and partnership interests of each corporation or partnership are identified.
(10)
An annual report and Securities and Exchange Commission 10(k) filing for each entity identified in Subsection C(9) of this section that generates such documents.
(11)
A summary of the results of and/or, at the franchisee's option,
copies of the system's technical tests and measurements performed
during the past year.
(12)
A detailed copy of updated maps depicting the location of all
cable plant, showing areas served and locations of all trunk lines
and feeder lines in the Town, and including changes in all such items
for the period covered by the report.
(13)
A full schedule of all subscriber and other user rates, fees
and charges.
(14)
Such other information as the Town may direct.
D.
Semiannual report. Unless this requirement is waived in whole or
in part by the Town, twice each year (by January 31 for the previous
six months ending December 31 and by July 31 for the previous six
months ending June 30) a franchisee shall submit written reports to
the Town, in a form acceptable to the Town.
E.
Monthly report. Unless this requirement is waived in whole or in
part by the Town, no later than 10 days after the end of each month,
a franchisee shall submit a written report to the Town regarding the
preceding month, in a form acceptable to the Town, which shall include:
(1)
The active system plant in miles, specifying aerial and underground
mileage.
(2)
The new system segments built, in miles, if any, specifying aerial
and underground mileage.
(3)
The number of subscribers and the penetration rate for each type
of service and equipment offered.
(4)
The number of subscriber service disconnections.
(5)
The number of outages, identifying separately:
(a)
Each outage; whether planned or unplanned; the time it occurred,
its duration, when the franchisee responded and when the outage was
corrected; the estimated area and a description of the subscribers
affected;
(b)
In addition, for each unplanned outage, its cause, the number
of subscribers affected; and
(c)
The total hours of outages as a percentage of total hours of
cable system operation.
(6)
The number of cases in which installation was not provided within
the time established in this article.
(7)
The average telephone answering and hold times, and the number of
instances in which those telephone answering and hold times exceeded
the time limits established in this article.
(8)
The percentage of customer calls that received a busy signal.
(9)
The average and minimum number of customer service representatives
on the franchisee's staff for telephone answering purposes.
F.
Special reports. Unless this requirement is waived in whole or in
part by the Town, the franchisee shall deliver the following special
reports to the Town:
(1)
A franchisee shall submit quarterly construction reports to the Town
after the franchise is awarded for any construction undertaken during
the term of the franchise until such construction is complete, including
any rebuild that may be specified in the franchise. The franchisee
must submit to the Town as part of the quarterly construction report,
or make available for inspection with notice of their availability
as part of the quarterly construction report, updated as-built system
design maps depicting construction completed in the previous quarter.
The maps shall be developed on the basis of post-construction inspection
by the franchisee and construction personnel to assess compliance
with system design. Any departures from design must be indicated on
the as-built maps, to assist the Town in assessing operator compliance
with its obligations.
(2)
A franchisee must submit to the Town a copy of any notice of deficiency,
forfeiture, or other document issued by any state, county or federal
agency instituting any investigation or civil or criminal proceeding
regarding the cable system, the franchisee, or any affiliate of the
franchisee, to the extent the same may affect or bear on operations
in the Town. This material shall be submitted to the Town within five
days of its receipt by the franchisee or its affiliate, as the case
may be.
(3)
The franchisee must submit to the Town a copy of any request for
protection under bankruptcy laws, or any judgment related to a declaration
of bankruptcy by the franchisee or by any partnership or corporation
that owns or controls the franchisee directly or indirectly. This
material shall be submitted at the time it is filed with the court
having jurisdiction over the matter or within five days of receipt
by the franchisee or related entity, as the case may be, whichever
is sooner.
G.
Additional reports. A franchisee shall provide such other information
or reports as the Town may request for the purpose of enforcing any
provision of the franchise agreement or this article.
H.
Records required. The franchisee shall at all times maintain:
(1)
Records of all complaints received. Complaints recorded may not be
limited to complaints requiring an employee service call.
(2)
A full and complete set of plans, records, and "as built" maps showing
the exact location of all system equipment installed or in use in
the Town, exclusive of subscriber service drops.
(3)
A comprehensive record of all personnel transactions and utilization
of contractors, subcontractors, vendors, and suppliers.
(4)
Records of outages, indicating date, duration, area, and the subscribers
affected, type of outage, and cause.
(5)
Records of service calls for repair and maintenance indicating the
date and time service was required, the date of acknowledgement and
date and time service was scheduled (if it was scheduled), and the
date and time service was provided, and (if different) the date and
time the problem was solved.
(6)
Records of installation/reconnection and requests for service extension,
indicating date of request, date of acknowledgment, and the date and
time service was extended.
(7)
A public file showing the franchisee's plan and timetable for construction
of the cable system.
I.
Performance evaluation.
(1)
The Town may, at its discretion, hold performance evaluation sessions.
All such evaluation sessions shall be open to the public. The franchisee
may be required by the Town to notify subscribers of all such evaluation
sessions by announcement on a designated local access channel on the
system between the hours of 9:00 a.m. and 9:00 p.m. for five consecutive
days preceding each session.
(2)
Topics that may be discussed at any evaluation session may include,
but are not limited to, system performance and construction, franchisee
compliance with this article and its franchise agreement, customer
service and complaint response, subscriber privacy, services provided,
programming offered, service rate structures, franchise fees, penalties,
free or discounted services, applications of new technologies, judicial
and FCC filings, and line extensions.
(3)
During the evaluation process, the franchisee shall fully cooperate
with the Town and shall provide such information and documents as
the Town may need to reasonably perform its review, including information
and documents that may be considered proprietary or confidential.
J.
Voluminous materials. If any books, records, maps or plans, or other
requested documents are too voluminous, or for security reasons cannot
be copied and moved, then the franchisee may request that the inspection
take place at some other location, provided that:
K.
Retention of records; relation to privacy rights. The franchisee
shall take all steps that may be required to ensure that it is able
to provide the Town all information which must be provided or may
be requested under this article or its franchise agreement, including
by providing appropriate subscriber privacy notices. Nothing in this
section shall be read to require the franchisee to violate 47 U.S.C.
§ 551. Each franchisee shall be responsible for redacting
any data that federal law prevents it from providing to the Town.
The Town retains the right to question any such redaction and to challenge
it in any forum having jurisdiction over such a challenge. Records
shall be kept for at least five years.
L.
Waiver of reporting requirements. The Town may, at its discretion,
waive in writing the requirement of any particular report specified
in this section.
A.
Insurance required.
(1)
A franchisee shall maintain, and by its acceptance of a franchise
specifically agrees that it will maintain, throughout the entire length
of the franchise period, worker's compensation and employer liability
insurance meeting all requirements of Maryland law.
(2)
The franchisee shall maintain, and by its acceptance of the franchise
specifically agrees that it will maintain, throughout the entire length
of the franchise period, comprehensive general liability insurance
insuring the Town and the franchisee with respect to the construction,
operation, and maintenance of the cable system, and the conduct of
the franchisee's business in the Town and including coverage for all
risks from premises-operations, explosion and collapse hazard, underground
hazard, products/completed operations hazard, contractual insurance,
broad form property damage, and personal injury, in the following
minimum amounts, but in any event no less than the liability limits
specified by the Local Government Tort Claims Act (Courts and Judicial
Proceedings Article, Title 5, Subtitle 3, § 5-301 et seq.,
Annotated Code of Maryland):
(a)
Property damage: $500,000 for property damage resulting from
any one accident; $1,000,000 for property damage aggregate;
(b)
Bodily injury: $1,000,000 for personal bodily injury or death
for one person; $2,000,000 for bodily injury aggregate per single
accident and occurrence; and
(c)
Other: $2,000,000 for all other types of liability.
(3)
The franchisee shall maintain, and by its acceptance of the franchise
specifically agrees that it will maintain, throughout the entire length
of the franchise period, general comprehensive public liability insurance
indemnifying, defending and saving harmless the Town, its officers,
boards, commissions, agents or employees from any and all claims by
any person whatsoever on account of injury to or death of a person
or persons occasioned by the operations of the franchisee under the
franchise herein granted or alleged to have been so caused or occurred,
all risks from premises-operations, explosion and collapse hazard,
underground hazard, products/completed operations hazard, contractual
insurance, broad form property damage, and personal injury, with a
minimum liability of $1,000,000 per personal injury or death of any
one person and $2,000,000 for personal injury or death of two or more
persons in any one occurrence.
(4)
The franchisee shall maintain, and by its acceptance of the franchise
specifically agrees that it will maintain, throughout the entire length
of the franchise period, automobile liability insurance for owned
or leased vehicles in the minimum amount of $2,000,000 for bodily
injury and consequent death per occurrence, $1,000,000 for bodily
injury and consequent death to any one person, and $500,000 for property
damage per occurrence.
(5)
In the event that the insurance requirements set forth in this section
are increased by amendment during the term of an existing franchise,
the franchisee shall increase its policy limits accordingly at the
time of the next renewal of the franchisee's policy or policies.
B.
Endorsements.
(1)
All insurance policies and certificates maintained pursuant to a
franchise agreement shall contain the following endorsement:
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It is hereby understood and agreed that this insurance coverage
may not be canceled by the insurance company nor the intention not
to renew be stated by the insurance company until 30 days after receipt
by the Town Clerk, by registered mail, of a written notice of such
intention to cancel or not to renew.
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(2)
All contractual liability insurance policies and certificates maintained
pursuant to a franchise agreement shall include the provision of the
following hold harmless clause:
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The company agrees to indemnify, save harmless and defend each
municipality, its agents, servants, and employees, and each of them
against and hold it and them harmless from any or all lawsuits, claims,
demands, liabilities, losses and expenses, including court costs and
reasonable attorney's fees, for or on account of any injury to any
person, or any death at any time resulting from such injury, or any
damage to any property, which may arise or which may be alleged to
have arisen out of or in connection with the work covered by this
agreement. The foregoing indemnity shall apply except if such injury,
death or damage is caused directly by the negligence or other fault
of the Town, its agents, servants, or employees or any other person
indemnified hereunder.
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C.
Qualifications of sureties. All insurance policies shall be with
sureties qualified to do business in the State of Maryland, with an
A-1 or better rating of insurance by Best's Key Rating Guide, Property/Casualty
Edition, and in a form acceptable to the Town.
D.
Policies available for review. All insurance policies shall be available
for review by the Town, and the franchisee shall keep on file with
the Town certificates of insurance.
E.
Additional insureds; prior notice of policy cancellation. All liability
insurance policies shall name the Town, its officers, boards, commissions,
commissioners, agents, and employees as additional insureds and shall
further provide that any cancellation or reduction in coverage shall
not be effective unless 30 days' prior written notice thereof has
been given to the Town. A franchisee shall not cancel any required
insurance policy without submission of proof that it has obtained
alternative insurance satisfactory to the Town which complies with
its franchise agreement.
F.
Failure constitutes material violation. Failure to comply with the
insurance requirements set forth in this section shall constitute
a material violation of a franchise.
G.
Indemnification.
(1)
A franchisee shall, at its sole cost and expense, indemnify, hold
harmless, and defend the Town, its officials, boards, commissions,
commissioners, agents, and employees against any and all claims, suits,
causes of action, proceedings, and judgments for damages arising out
of the construction, maintenance, or operation of its cable system;
copyright infringements or a failure by the franchisee to secure consents
from the owners, authorized distributors, or franchisees of programs
to be delivered by the cable system; the conduct of the franchisee's
business in the Town; or in any way arising out of the franchisee's
enjoyment or exercise of the franchise, regardless of whether the
act or omission complained of is authorized, allowed, or prohibited
by this article or its franchise agreement.
(2)
Specifically, a franchisee shall fully indemnify, defend, and hold
harmless the Town, and in its capacity as such, the officers, agents,
and employees thereof, from and against any and all claims, suits,
actions, liability, and judgments for damages or otherwise subject
to 47 U.S.C. § 558, arising out of or alleged to arise out
of the installation, construction, operation, or maintenance of the
system, including but not limited to any claim against the franchisee
for invasion of the right of privacy, defamation of any person, firm
or corporation, or the violation or infringement of any copyright,
trademark, trade name, service mark, or patent, or of any other right
of any person, firm, or corporation. This indemnity does not apply
to programming carried on any channel set aside for PEG use, or channels
leased pursuant to 47 U.S.C. § 532, except that this indemnity
shall apply to any actions taken by a franchisee pursuant 47 U.S.C.
§ 531(e) or 47 U.S.C. § 532(c)(2) concerning the
programming carried on PEG or leased access channels or an institutional
network.
(3)
The indemnification required by this section shall include, but is
not limited to, the Town's reasonable attorneys' fees incurred in
defending against any such claim, suit, or proceeding, in addition
to the reasonable value of any services rendered by the Town Attorney
or Town staff or employees.
H.
No limit of liability. Neither the provisions of this section nor
any damages recovered by the Town shall be construed to limit the
liability of the franchisee for damages under the franchise.
A.
Penalties.
(1)
For violation of provisions of this article or a franchise agreement
entered into pursuant to this article, penalties shall be assessable
against a franchisee and shall be chargeable to the franchisee's security
fund in any amount up to the limits specified below, at the Town's
discretion:
(a)
For failure to submit any required plans indicating expected
dates of installation of various parts of the system: $1,000 per day
for each violation for each day the violation continues.
(b)
For failure to commence operations in accordance with the requirements
of the franchise agreement: $2,000 per day for each violation for
each day the violation continues after a thirty-day cure period, if
the franchisee has not undertaken substantial corrective action to
cure the violation within that thirty-day period.
(c)
For failure to substantially complete construction in accordance
with a franchisee's franchise agreement: $3,000 per day for each violation
for each day the violation continues after a thirty-day cure period,
if the franchisee has not undertaken substantial corrective action
to cure the violation within that thirty-day period.
(d)
For transferring the franchise without approval: $2,000 per
day for each violation for each day the violation continues.
(e)
For failure to comply with requirements for PEG use of the system:
$1,000 per day for each violation for each day the violation continues
after a fourteen-day cure period, if the franchisee has not undertaken
substantial corrective action to cure the violation within that fourteen-day
period.
(f)
For failure to supply information, reports, or filings lawfully
required under the franchise agreement or applicable law or by the
Town: $500 per day for each violation for each day the violation continues
after a thirty-day cure period, which shall begin to run on the due
date of any regularly scheduled report and on the date of a deadline
reasonably set by the Town for any report or information request not
regularly scheduled, unless the franchisee shows that it was not in
fact aware of the requirement in question, in which case the thirty-day
cure period shall begin to run upon written notice of such requirement
by the Town to the franchisee.
(g)
For violation of customer service standards, or failure to file
a compliance certification or noncompliance statement as required
herein: $500 per day or per event, as applicable.
(h)
For failure to pay franchise fees or liquidated damages: $100
per day, in addition to any monetary payment due under a franchise
agreement or this article, for each violation for each day the violation
continues after a seven-day cure period, if the franchisee has failed
to make payment within that seven-day period, provided that these
penalties shall be in addition to any late fees that may apply.
(i)
For failure to file, obtain or maintain any required security
fund in a timely fashion: $200 per day.
(j)
For failure to restore damaged or disturbed property: $200 per
day, in addition to the cost of the restoration and any other penalties
or fees as required elsewhere herein or in a franchise agreement,
for each day the violation continues after a ten-day cure period,
if the franchisee has not undertaken substantial corrective action
to cure the violation within that ten-day period.
(k)
For violation of technical standards established by the FCC:
$100 per day for each day the violation continues after a thirty-day
cure period after the Town gives the franchisee notice of such violation.
(l)
For knowingly and intentionally signing a false report or statement:
$1,000 per report or document.
(m)
For any other violations of this article, a franchise agreement,
or other applicable law: $500 per day for each violation for each
day the violation continues.
(2)
The franchisee shall pay any penalty assessed in accordance with
this article within 14 days after receipt of notice from the Town
of such penalty.
(3)
To the extent that penalties are applied to a franchisee under this
section, a franchisee shall not be subject to liquidated damages payable
to the Town for the same violation.
(4)
The Mayor and Town Council, upon written request by a franchisee
delivered to the Town Clerk within 10 days of the date of the issuance
of any citation pursuant to this article, may reduce or waive any
of the above-listed penalties for good cause shown.
(5)
Pending litigation or any appeal to any regulatory body or court
having jurisdiction over a franchisee shall not excuse the franchisee
from the performance of its obligations under this article or its
franchise agreement unless a stay is obtained or the franchisee is
otherwise excused from performance by operation of law. Failure of
the franchisee 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 article and/or its franchise agreement.
B.
Termination on account of certain assignments or appointments.
(1)
Any franchise shall 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 Town's sole discretion if, within
that one-hundred-twenty-day period:
(a)
Such assignment, receivership or trusteeship has been vacated;
or
(b)
Such assignee, receiver, or trustee has fully complied with
the terms and conditions of this article 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 article and the applicable franchise
agreement, and such other conditions as may be established or as are
required by applicable law.
(2)
Notwithstanding the foregoing, in the event of foreclosure or other
judicial sale of any of the facilities, equipment, or property of
a franchisee, the Town may revoke the franchise, following a public
hearing, by serving notice on the franchisee 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:
(a)
The Town has approved the transfer of the franchise to the successful
bidder; and
(b)
The successful bidder has covenanted and agreed with the Town
to assume and be bound by the terms and conditions of the franchise
agreement and this article, and such other conditions as may be established
or as are required pursuant to this article or a franchise agreement.
C.
Remedies cumulative. All remedies under this article and the franchise
agreement are cumulative unless otherwise expressly stated. The exercise
of a remedy or the payment of liquidated damages or penalties shall
not relieve a franchisee of its obligations to comply with its franchise
or applicable law.
D.
Relation to insurance and indemnity requirements. Recovery by the
Town of any amounts under insurance, the security fund, the performance
bond, or letter of credit, or otherwise does not limit a franchisee's
duty to indemnify the Town in any way; nor shall such recovery relieve
a franchisee of its obligations under a franchise, limit the amounts
owed to the Town, or in any respect prevent the Town from exercising
any other right or remedy it may have.
E.
Termination for other reasons. Unless otherwise provided for in the
franchise agreement:
(1)
Whenever the franchisee shall willfully and/or repeatedly fail, refuse
or neglect to conduct, operate or maintain its cable system in accordance
with the terms of this article and the franchise, or to comply with
the conditions of street occupancy, or to make required extensions,
or in other ways violate the terms and conditions of this article,
the Town Administrator may notify the franchisee in writing, setting
forth the nature and facts of such noncompliance. If within 30 calendar
days following such written notification the franchisee has not furnished
proof that corrective action has been taken or is being actively and
expeditiously pursued, or evidence that the alleged violations did
not occur, the Town Administrator shall place request for termination
of the franchise on the agenda of the next meeting of the Town Council.
(2)
If, after considering the Town Administrator's request for termination
of the franchise and hearing all interested parties, the Town determines
that the noncompliance of the franchisee was with just cause, it shall
direct the franchisee to comply within such time and manner and on
such terms and conditions as are reasonable.
(3)
If the Town determines that such noncompliance was without just cause,
then the Town may terminate the franchise.
(4)
No revocation or termination shall be effected unless the Town, at
any regular or special public meeting at which all interested parties
have been heard, shall set further the reasons for the termination,
and in the event the termination of said franchise depends upon a
finding of fact, such finding of fact as made by the Mayor and Town
Council after said hearing shall be deemed to be conclusive unless
modified by a court of law of appropriate jurisdiction.
(5)
The franchisee shall not be declared in violation of or be subject
to any sanction under provisions of this article in any case where
the performance of the cable service is prevented for reasons beyond
the franchisee's control. A violation shall not be deemed to be beyond
the franchisee's control if committed by a corporation or other business
entity in which the franchisee holds a controlling interest, whether
held directly or indirectly.
(6)
The termination of the franchisee shall in no way affect any of the
rights of the Town under the franchise or any provision of law.
A.
Town approval required.
(1)
A franchise granted under this article shall be a privilege to be
held in personal trust by the franchisee.
(2)
No transfer (including by forced or voluntary sale, merger, consolidation,
receivership or other means) shall occur unless prior application
is made by a franchisee to the Town and the Town's prior written consent
is obtained, pursuant to this article and the franchise agreement,
and only then upon such terms and conditions as the Town deems necessary
and proper. Any such transfer without the prior written consent of
the Town shall be considered to impair the Town's assurance of due
performance. The granting of approval for a transfer in one instance
shall not render unnecessary approval of any subsequent transfer.
B.
Application.
(1)
A franchisee shall notify the Town as soon as possible of any proposed
transfer.
(2)
At least 120 calendar days prior to the contemplated effective date
of a transfer, a franchisee shall submit to the Town a written application
for approval of the transfer. Such an application shall provide complete
information on the proposed transaction, including details on the
legal, financial, technical, and other qualifications of the transferee,
and on the potential impact of the transfer on subscriber rates and
service. At a minimum, the following information must be included
in the application, unless these requirements are waived, reduced,
or modified by the Town as stated herein:
(a)
All information and forms required under federal law.
(b)
A detailed statement of the corporate or other business entity
organization of the proposed transferee, together with an explanation
of how decisions regarding the system will be made if the proposed
transaction is approved.
(c)
Any contracts, financing documents, or other documents that
relate to the proposed transaction, and all documents, schedules,
exhibits, or the like referred to therein.
(3)
At a franchisee's option, the franchisee may notify the Town of the proposed transaction in general terms at least 150 days prior to the contemplated effective date of a transfer, and request that the Town waive some or all of the information requirements specified in Subsection B(2). To the extent consistent with applicable law, the Town may waive in writing any such requirement that information be submitted as part of the initial application, without thereby waiving any rights the Town may have to request such information after the initial application is filed.
(4)
For the purposes of determining whether it shall consent to a transfer,
the Town or its agents may inquire into all qualifications of the
prospective transferee and such other matters as the Town may deem
necessary to determine whether the transfer is in the public interest
and should be approved, denied, or conditioned. A franchisee and any
prospective transferees shall assist the Town in any such inquiry,
and if they fail to provide such reasonable assistance, the request
for transfer may be denied.
C.
Determination by Town. In making a determination as to whether to
grant, deny, or grant subject to conditions an application for a transfer,
the Town may consider, without limitation, the legal, financial, and
technical qualifications of the transferee to operate the system;
any potential impact of the transfer on subscriber rates or services;
and whether operation by the transferee or approval of the transfer
would adversely affect subscribers, the Town's interest under a franchise
agreement, this article, other applicable law, and is otherwise in
the public interest.
D.
Effect of transfer without approval. Any transfer without the Town's
prior written approval shall be ineffective, and shall make the franchise
subject to cancellation at the Town's sole discretion, and to any
other remedies available under this article, a franchise agreement,
or other applicable law.
E.
Notification of certain transactions.
(1)
A franchisee shall give the Town reasonable advance notice of any
change of ownership or other right, title, or interest of more than
5% but less than 10% in a publicly traded corporation controlling
the franchisee, its cable system, or any person that is a cable operator
of the cable system (or in the franchisee itself), or an interest
of more than 5% but less than 20% in an entity other than a publicly
traded corporation controlling the franchisee, its cable system, or
any person that is a cable operator of the cable system (or in the
franchisee itself, if it is not a publicly traded corporation), directly
or indirectly, to an entity that does not presently control such entity
other than a publicly traded corporation. If the Town does not have
the right under a franchise agreement and applicable law to approve
or deny a change of the type defined in the preceding sentence, the
franchisee shall warrant to the Town the legal, financial, and character
qualifications of the entity acquiring such an interest.
(2)
A franchisee will notify the Town if at any time there is a mortgage
or security interest granted on substantially all of the assets of
a franchisee's cable system, and will provide the Town with copies
of all loan documents with respect to such transaction as soon as
such documents become publicly available and, if such documents do
not become publicly available within 10 business days after loan closing,
will make such documents available for inspection within 10 business
days after loan closing.
F.
Approval does not constitute waiver. Approval by the Town of a transfer
does not constitute a waiver or release of any of the rights of the
Town under this article or a franchise agreement, whether arising
before or after the date of the transfer.
A.
Applicability of chapter.
(1)
This article shall apply to open video systems that comply with 47 U.S.C. § 573, to the extent permitted by applicable law, except that the following sections shall not apply: § 62-9A and C, regarding grant of franchise; § 62-10, Franchise applications; § 62-11, Filing fees; § 62-12, Provision of cable service; § 62-13A, System construction schedule; § 62-16, regarding rate regulation; § 62-17B and C, regarding franchise fees; § 62-19F, regarding failure to comply with insurance requirements as a material violation of a franchise; § 62-20A(1), B, C and H, setting forth certain penalties; and § 62-20B, regarding franchise termination due to bankruptcy.
(2)
In applying this article to an open video system, "franchisee" shall
be taken to refer to the open video system operator, "cable system"
to the open video system, and similar terms shall apply similarly.
C.
PEG access obligations. An open video system operator shall be subject
to obligations pertaining to PEG access pursuant to applicable law
and to the requirements herein.
D.
Right-of-way usage. An open video system operator shall be subject
to all requirements of state and local law regarding authorization
to use or occupy the public rights-of-way, except to the extent specifically
prohibited by federal law. FCC approval of an open video system operator's
certification pursuant to 47 U.S.C. § 573 shall not be taken
to confer upon such operator any authority to use or occupy the public
rights-of-way that such operator would not otherwise possess.
A.
Discriminatory practices prohibited.
(1)
A franchisee shall not deny service, deny access, or otherwise discriminate
against subscribers, programmers, or residents of the Town on the
basis of race, color, religion, national origin, gender, or age.
(2)
A franchisee shall not discriminate among persons or take any retaliatory
action against a person because of that person's exercise of any right
he or she may have under federal, state, or local law, nor may the
franchisee require a person to waive such rights as a condition of
receiving service.
(3)
A franchisee shall not deny access or levy different rates and charges
on any group of potential residential cable subscribers because of
the income of the residents of the local area in which such group
resides.
(4)
Subject to applicable law and except to the extent the Town may waive
such a requirement, a franchisee is prohibited from discriminating
in its rates or charges or from granting undue preferences to any
subscriber, potential subscriber, or group of subscribers or potential
subscribers; provided, however, that a franchisee may offer temporary,
bona fide promotional discounts in order to attract or maintain subscribers,
so long as such discounts are offered on a nondiscriminatory basis
to similar classes of subscribers throughout the Town; and a franchisee
may offer discounts for the elderly, the handicapped, not-for-profit
persons or organizations, or the economically disadvantaged, and other
discounts in conformance with federal law, if such discounts are applied
in a consistent and nondiscriminatory manner, and provided that a
franchisee may provide such other bulk discounts as are permitted
by the cable uniform rate structure provisions of federal law as they
may exist from time to time. A franchisee shall comply at all times
with all applicable federal, state, and Town laws, and all executive
and administrative orders relating to nondiscrimination.
B.
Information accessibility. Each document required to be maintained,
filed or submitted under the provisions of this article or a franchise
agreement, except those specifically designated as confidential by
a franchisee, subject to the Town's review, pursuant to applicable
law, is a public document, available for public inspection and copying
at the requestor's expense at the office of the franchisee or the
Town during normal business hours.
C.
Equal employment opportunity. A franchisee shall not refuse to employ,
discharge from employment, or discriminate against any person in compensation
or in terms, conditions, or privileges of employment because of race,
color, religion, national origin, sex, or age. A franchisee shall
comply with all federal, state, and local laws and regulations governing
equal employment opportunities, as the same may be from time to time
amended.
D.
Subscriber privacy.
(1)
A franchisee shall at all times protect the privacy rights of all
subscribers, including but not limited to those rights secured by
the provisions 47 U.S.C. § 551.
(2)
The franchisee shall not permit the transmission of any signal, aural,
visual or digital, including "polling" the channel selection, from
any subscriber's premises without first obtaining such subscriber's
prior voluntary affirmative authorization. Neither the franchisee
nor any other person shall initiate in any form the discovery of any
information on or about an individual subscriber's premises without
prior voluntary affirmative authorization from the subscriber potentially
affected. This provision is not intended to prohibit the transmission
of signals useful only for the control or measurement of system performance
or for detection of theft of service.
(3)
The franchisee shall not permit the installation of any special terminal
equipment in any subscriber's premises that will permit transmission
from such subscriber's premises of two-way services utilizing aural,
visual or digital signals without such subscriber's prior voluntary
affirmative authorization.
(4)
The franchisee shall strictly observe and protect the rights of privacy
and property rights of subscribers and users at all times. Individual
subscriber preferences of any kind, viewing habits, political, social
or economic philosophies, beliefs, creeds, religions or names, addresses
or telephone numbers shall not be revealed to any person, governmental
unit, police department or investigating agency unless upon the authority
of a court of law, a valid search warrant or subpoena, or upon prior
voluntary affirmative authorization of the subscriber or as may be
permitted by operation of law.
(5)
The franchisee shall not tabulate any test results that would reveal
the commercial product preferences or opinions of individual subscribers,
members of their families or their invitees, licensees, or employees,
nor permit the use of the system for such tabulation, without the
subscriber's prior voluntary affirmative authorization.
(6)
A subscriber may at any time revoke any prior voluntary affirmative
authorization to release information by delivering to the franchisee
in writing, by mail or otherwise, the subscriber's decision to revoke
the authorization. Any such revocation shall be effective upon receipt
by the franchisee.
(7)
A franchisee shall not condition subscriber service on the subscriber's
prior voluntary affirmative authorization or grant or denial of permission
to collect, maintain or disclose personally identifiable information,
except to the extent that such information is necessary for credit
check or billing purposes.
It shall be unlawful for any person to attach or affix or to
cause to be attached or affixed any equipment or device that allows
access to or use of the cable system without lawful payment to the
franchise for same. A violation of this section shall be a municipal
infraction punishable by a fine of $250 for each offense.
A.
Compliance with laws. Each franchisee shall comply with all federal,
state, and local laws and regulations heretofore and hereafter adopted
or established during the entire term of its franchise.
B.
No recourse against the Town. Without limiting such immunities as
the Town or other persons may have under applicable law, a franchisee
shall have no recourse whatsoever against the Town or its officials,
boards, commissions, agents or employees for any loss, costs, expense
or damage arising out of any provision or requirement of this article
or because of the enforcement of this article or the Town's exercise
of its authority pursuant to this article, a franchise agreement,
or other applicable law, unless the same shall be caused by criminal
acts or by willful or gross negligence.
C.
Rights and remedies.
(1)
The rights and remedies reserved to the Town by this article are
cumulative and shall be in addition to and not in derogation of any
other rights and remedies which the Town may have with respect to
the subject matter of this article.
(2)
The Town hereby reserves to itself the right to intervene in any
suit, action or proceeding involving any provision of this article
or a franchise agreement.
(3)
Specific mention of the materiality of any of the provisions herein
is not intended to be exclusive of any others for the purpose of determining
whether any failure of compliance hereunder is material and substantial.
(4)
No franchisee shall be relieved of its obligation to comply with
any of the provisions of this article or a franchise agreement by
reason of any failure of the Town to enforce prompt compliance; nor
shall any inaction by the Town be deemed to waive or void any provision
of this article or a franchise agreement.
(5)
The Town expressly reserves the right to cause the franchisee fee
percentage stated in this article to be subject to negotiation in
the event it is determined that the FCC lacks jurisdiction to impose
percentage limitations on franchise fees, if the percentage limitation
is revised by the FCC, or any other event occurs to permit negotiation
or renegotiation.
D.
Amendments to this article. Notwithstanding any other provision in
this article or a franchise agreement, nothing in this article or
a franchise agreement shall preclude the Town from exercising its
police powers to enact, amend or supplement any law or regulation
governing cable communications within the Town.
E.
Public emergency. In the event of a major public emergency or disaster
as determined by the Mayor of the Town or his designee, a franchisee
shall immediately make the entire cable system, employees, and property,
as may be necessary, available for use by the Town or other civil
defense or governmental agency designated by the Town to operate the
system for the term of such emergency or disaster for the emergency
purposes. In the event of such use, a franchisee shall waive any claim
that such use by the Town constitutes a use of eminent domain, provided
that the Town shall return use of the entire system, employees, and
property to the franchisee after the emergency or disaster has ended
or has been dealt with.
F.
Connections to system; use of antennas.
(1)
Subscribers shall have the right to attach devices to a franchisee's
system and the right to use their own remote control devices and converters
and other similar equipment, consistent with FCC equipment compatibility
rules and other applicable law, and a franchisee shall provide information
to consumers which will allow them to adjust such devices so that
they may be used with the franchisee's system.
(2)
A franchisee shall not, as a condition of providing service, require
a subscriber or potential subscriber to remove any existing antenna
or disconnect an antenna, or prohibit or discourage a subscriber from
installing an antenna switch, provided that such equipment and installations
are consistent with applicable codes and technically able to shield
the cable system from any interference.
G.
Calculation of time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter, or payment is required under this
article or any franchise agreement, and a period of time or duration
for the fulfillment of doing thereof is prescribed and is fixed herein,
the time shall be computed so as to exclude the first and include
the last day of the prescribed or fixed period of duration time.
