Editor's Note — Ord. no. 07-59 §1, adopted October 17, 2007, repealed ch. 675 "cable communications regulatory code" and enacted new provisions set out herein. Former ch. 675 derived from ord. no. 95-96 §§1 — 14, 12-20-1995; ord. no. 96-78 §1, 11-20-1996; ord. no. 04-50 §12, 10-6-2004.
[Ord. No. 07-59 §1, 10-17-2007]
Title. This Chapter shall be known and may be cited as the "Video Service Regulatory Code".
[Ord. No. 07-59 §1, 10-17-2007]
For the purposes of this Chapter, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa, and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory and "may" is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. Sections 521 et seq., as amended, and regulations issued pursuant thereto, and Sections 67.2675 through 67.2714, RSMo., and, if not defined therein, their common and ordinary meaning. For further convenience, the first (1st) letter of terms, phrases, words and abbreviations defined in this Chapter or by Federal law have been capitalized, but an inadvertent failure to capitalize such letter shall not affect meaning.
- When used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with such person.
- CABLE ACT
- Shall mean Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. Sections 521 et seq., as amended from time to time.
- CABLE OPERATOR
- Shall have the meaning ascribed to such term in 47 U.S.C. Section 522(5).
- CABLE SERVICE
- CABLE SYSTEM
- Shall have the meaning ascribed to such term in 47 U.S.C. Section 522(7).
- The City of Bridgeton, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
- CITY COUNCIL OR COUNCIL
- The Governing Body of the City.
- FEDERAL AGENCY
- Any agency of the United States, including the Federal Communications Commission.
- The Federal Communications Commission, its designee or any successor governmental entity thereto.
- An initial authorization or renewal of an authorization issued by the City prior to the date of this Chapter pursuant to a franchise agreement that authorizes the provision of video service and any affiliated or subsidiary agreements related to such authorization, until such franchise agreement expires or terminates.
- FRANCHISE AGREEMENT
- A contract entered into in accordance with the provisions of this Chapter between the City and a franchisee that sets forth, subject to this Chapter, the terms and conditions under which a franchise will be exercised.
- FRANCHISE AREA
- The area of the City that a franchisee is authorized to serve by its franchise agreement.
- FRANCHISE TRANSFER
- 1. Any transaction in which:
- a. Any ownership or other right, title or interest of more than ten percent (10%) in a franchisee or its cable system is transferred, sold, assigned, leased, sublet, mortgaged or otherwise disposed of or encumbered directly or indirectly, voluntarily or by foreclosure or other involuntary means, in whole or in part; or
- b. There is any change in or substitution of or acquisition or transfer of control of the franchisee or any person which has more than a ten percent (10%) interest in a franchisee or has responsibility for or control over a franchisee's operations or over the system; or
- c. The rights or obligations held by the franchisee under the franchise are transferred, directly or indirectly, to another person.
- 2. Control. The legal or practical ability to direct the affairs of another person, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest or in any other manner.
- 3. A rebuttable presumption that a change, acquisition or transfer of control has occurred shall arise upon the acquisition or accumulation of a ten percent (10%) or larger ownership interest by any person or group of persons acting in concert, none of whom already have more than a fifty percent (50%) ownership interest, alone or collectively.
- 4. Notwithstanding the foregoing, "franchise transfer" does not include:
- a. Disposition or replacement of worn out or obsolete equipment, property or facilities in the normal course of operating a cable system, including the renewal or extension of equipment or property leases and contracts; or
- b. Acquisition, transfer, sale or other disposition of leases, licenses, easements and other interests in real property in the normal course of operating a cable system and not involving the relinquishment of any right or power affecting the franchisee's ability to provide services in whole or in part; or
- c. Pledge or mortgage of a franchisee's assets to a financial institution in return for sums necessary to construct or operate (or both) the cable system, provided that such pledge or mortgage and related agreements obligate and limit such financial institution as follows: any foreclosure or exercise of lien over the franchise or facilities shall only be by assumption of control over the entire cable system; prior to assumption of control, the institution shall notify the City that it or a designee acceptable to the City will take control of and operate the system and shall submit a plan for such operation insuring continued service and compliance with this Chapter and all franchise obligations during the term the institution exercises such control; and the institution shall not exercise control for longer than one (1) year unless extended by the City for good cause and shall prior to the expiration of such period (as extended) obtain the City's approval of a franchise transfer for the remaining term of the franchise.
- A person that has been granted a franchise by the City prior to the date of this Chapter pursuant to a franchise agreement until such franchise agreement expires or terminates.
- GROSS REVENUES
- Gross revenues are limited to amounts billed to video service subscribers or received from advertisers for the following and for any other amounts which may permissibly be included in Gross Revenues pursuant to Section 67.2675 RSMo. et. seq.:
- 1. Recurring charges for video service;
- 2. Event-based charges for video service, including, but not limited to, pay-per-view and video-on-demand charges;
- 3. Rental of set top boxes and other video service equipment;
- 4. Service charges related to the provision of video service, including, but not limited to, activation, installation, repair and maintenance charges;
- 5. Administrative charges related to the provision of video service, including, but not limited to, service order and service termination charges; and
- 6. A pro rata portion of all revenue derived, less refunds, rebates or discounts, by a video service provider for advertising over the video service network to subscribers within the franchise area where the numerator is the number of subscribers within the franchise area, and the denominator is the total number of subscribers reached by such advertising.
- An apartment, a house, a mobile home or any other structure or part of a structure intended for residential occupancy as separate living quarters.
- LOW INCOME HOUSEHOLD
- A household with an average annual household income of less than thirty-five thousand dollars ($35,000.00) as determined by the most recent decennial census.
- NORMAL BUSINESS HOURS
- Those hours during which most similar businesses in the community are open to serve customers. In all cases the term "normal business hours" must include some evening hours at least one (1) night per week or some weekend hours.
- NORMAL OPERATING CONDITIONS
- Those service conditions which are within the control of a video service provider. Those conditions that are not within the control of a video service provider include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions that are ordinarily within the control of a video service provider include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, maintenance or upgrade of the cable system.
- An individual, partnership, limited liability company or partnership, association, joint stock company, trust, organization, corporation or other entity, or any lawful successor thereto or transferee thereof, but such term does not include the City.
- PUBLIC, EDUCATION OR GOVERNMENTAL ACCESS FACILITIES
- PUBLIC RIGHT-OF-WAY
- The area of real property in which the City has dedicated or acquired right-of-way interest in the real property, including the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way and utility easements dedicated for compatible uses. The term does not include airwaves above a right-of-way with regard to wireless communications or other non-wire telecommunications or broadcast service.
- Any sale, exchange or barter transaction.
- SERVICE INTERRUPTION
- The loss of picture or sound on one (1) or more video channels.
- Any person who legally receives any video service delivered over a video system and the City in its capacity as a recipient of such service.
- VIDEO PROGRAMMING
- Programming provided by, or generally considered comparable to programming provided by, a television broadcast station as set forth in 47 U.S.C. Section 522(20).
- VIDEO SERVICE
- The provision of video programming provided through wireline facilities located at least in part in the public right-of-way without regard to delivery technology, including Internet protocol technology whether provided as part of a tier, on demand or a per-channel basis. This definition includes cable service as defined by 47 U.S.C. Section 522(6), but does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. Section 332(d), or any video programming provided solely as part of and via a service that enables users to access content, information, electronic mail or other services offered over the public Internet.
- VIDEO SERVICE AUTHORIZATION
- The right of a video service provider that secures permission from the public service commission pursuant to Sections 67.2675 to 67.2714, RSMo., to offer video service to subscribers in the City.
- VIDEO SERVICE NETWORK
- Wireline facilities, or any component thereof, located at least in part in the public right-of-way that deliver video service, without regard to delivery technology, including Internet protocol technology or any successor technology. The term "video service network" shall include cable systems.
- VIDEO SERVICE PROVIDER
- Any person that distributes video service through a video service network pursuant to a video service authorization; including a franchisee.
- VIDEO SERVICE PROVIDER FEE
- The fee imposed under Section 67.2689, RSMo.
[Ord. No. 07-59 §1, 10-17-2007]
Grant Of Franchise. To the extent the City has granted one (1) or more cable television franchises prior to the date of this Chapter, those franchises (and the franchise agreements pursuant to which they were granted) shall remain in full force and effect subject to the provisions of applicable State law.
Length Of Franchise. No franchise shall initially be granted for a period of more than twenty (20) years or less than four (4) years.
A franchise authorizes use of public right-of-ways for installing, operating and maintaining 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 through eminent domain or otherwise (except for use of compatible easements pursuant to and consistent with Section 621 of the Cable Act, 47 U.S.C. Section 541(a)(2)) or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners.
A franchise shall not mean or include any franchise, license or permit for the privilege of transacting and carrying on a business within the City as generally required by the ordinances and laws of the City other than this Chapter, or for attaching devices to poles or other structures, whether owned by the City or other person, or for excavating or performing other work in or along public right-of-ways. A franchise shall not confer any authority to provide telecommunications service or any other communications services besides cable services. A franchise shall not confer any implicit rights other than those mandated by Federal, State or local law.
A franchise is non-exclusive and will not explicitly or implicitly: preclude the issuance of other franchises to operate cable systems within the City; affect the City's right to authorize use of public right-of-ways by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the City's right to itself construct, operate or maintain a cable system, with or without a franchise.
Once a franchise agreement has been accepted and executed by the City and a franchisee, such franchise agreement shall constitute a valid and enforceable contract between the franchisee and the City, and the terms, conditions and provisions of such franchise agreement, subject to this Chapter and all other duly enacted and applicable laws, shall define the rights and obligations of the franchisee and the City relating to the franchise.
All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the City reserves the right to reasonably designate where a franchisee's facilities are to be placed within the public rights-of-way through its generally applicable permit procedures without materially adding to the obligations of the franchisee.
A franchise shall be a privilege that is in the public trust and personal to the original franchisee. No franchise transfer shall occur without the prior written consent of the City upon application made by the franchisee pursuant to this Chapter and the franchise agreement, which consent shall not be unreasonably withheld, and any purported franchise transfer made without application and prior written consent shall be void and shall be cause for the City to revoke the franchise agreement.
Franchisee Subject To Other Laws, Police Power.
A franchisee shall at all times be subject to and shall comply with all applicable Federal, State and local laws, including this Chapter. A franchisee shall at all times be subject to all lawful exercise of the Police power of the City, including, but not limited to, all rights the City may have under 47 U.S.C. Section 552, all powers regarding zoning, supervision of construction, assurance of equal employment opportunities, control of public rights-of-way and consumer protection.
No course of dealing between a franchisee and the City, or any delay on the part of the City in exercising any rights hereunder, shall operate as a waiver of any such rights of the City or acquiescence in the actions of a franchisee in contravention of such rights except to the extent expressly waived in writing or expressly provided for in a franchise agreement.
The City shall have full authority to regulate cable systems, franchisees and franchises as may now or hereafter be lawfully permissible. Except where rights are expressly waived by a franchise agreement, they are reserved, whether or not expressly enumerated.
Interpretation Of Franchise Terms.
In the event of a conflict between this Chapter and a franchise agreement, the provisions of the franchise agreement control except where the conflict arises from the lawful exercise of the City's Police power.
The provisions of this Chapter and a franchise agreement will be liberally construed in accordance with generally accepted rules of contract construction and to promote the public interest.
Acts At Franchisee's Expense. Any act that a franchisee is or may be required to perform under this Chapter, a franchise agreement or applicable law shall be performed at the franchisee's expense, without reimbursement by the City, unless expressly provided to the contrary in this Chapter, the franchise agreement or applicable law.
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City's power of eminent domain.
[Ord. No. 07-59 §1, 10-17-2007]
Application For Modification Of A Franchise.
An application for modification of a franchise agreement shall include, at minimum, the following information:
The specific modification requested;
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, among other things, submission of financial pro formas covering the period of time in which the modification would be in effect if approved, including a statement of projected gross revenues and income;
A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. Section 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. Section 545;
Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and
An affidavit or declaration of the applicant or authorized officer certifying the truth, accuracy and completeness of the information in the application, acknowledging the enforceability of application commitments upon acceptance through the granting of the modification and certifying that the application is consistent with all Federal, State and local laws.
If the request for modification is subject to 47 U.S.C. Section 545, the City Council will conduct its review and make its decision in conformity with that Statute. If the request for modification is not subject to 47 U.S.C. Section 545, the City Council will conduct its review and make its decision by ordinance enacted no less than thirty (30) days after the application is filed, subsequent to preparation of a modified written franchise agreement by the City and signature thereof by the applicant.
No franchise transfer shall occur without prior written application to and written approval of the City Council by ordinance enacted after a public hearing, and only then upon such terms and conditions as the City Council reasonably deems necessary and proper. Approval shall not be unreasonably withheld. Any purported franchise transfer made without such prior approval shall be void and shall be cause for the City to revoke the franchise agreement. A grant of a franchise involves personal credit, trust and confidence in the franchisee, and franchise transfer without the prior written approval of the City Council shall be considered to impair the City's assurance of due performance. The granting of approval for a franchise transfer in one (1) instance shall not render unnecessary approval of any subsequent franchise transfer.
The franchisee shall promptly notify the City Clerk in writing of any proposed franchise transfer. If any franchise transfer should take place without prior notice to the City, the franchisee will promptly notify the City Clerk in writing that such a franchise transfer has occurred.
At least one hundred twenty (120) calendar days prior to the contemplated effective date of a franchise transfer, the franchisee shall submit to the City Clerk an application for approval of the franchise transfer. Such an application shall provide information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee, any waivers required from the City under applicable law and on the potential impact of the franchise transfer on subscriber rates and service. At a minimum, the following information must be included in the application:
All information and forms required under Federal law;
A description of any business relationships or transactions of any kind, past, present or anticipated, between the franchisee or its owners or affiliates, and the transferee, or its owners or affiliates, other than the proposed transaction;
Any contracts, financing documents or other documents that relate to the proposed transaction, and all documents, schedules, exhibits or the like referred to therein;
A description of the sources and amounts of the funds to be used in the proposed transaction, indicating how the debt-equity ratio of the system will change in the course of the transaction; what entities will be liable for repayment of any debt incurred; what interest, payment schedule, and other terms or conditions will apply to any debt financing; any debt coverages or financial ratios any potential transferees will be required to maintain over the franchise term if the proposed transaction is approved; what financial resources would be available to the system under the control of the proposed transferee;
Any other information necessary to provide a complete and accurate understanding of the financial position of the system before and after the proposed franchise transfer, including, but not limited to, projected income statements and cash flow statements, including capital investments, for at least five (5) years after the proposed franchise transfer, assuming the franchise transfer is approved, stating specifically what assumptions are being made with respect to any rebuild or upgrade of the system;
A statement that the franchisee is in compliance with its franchise obligations over the term of the franchise, or specific descriptions of any non-compliance of which the franchisee or any potential transferee is aware.
For the purposes of determining whether it shall consent to a franchise transfer, the City Council and its agents may inquire into the qualifications of the prospective transferee and such other matters as the City Council may deem necessary to determine whether the franchise transfer is in the public interest and should be approved or denied. The franchisee and any prospective transferees shall assist the City Council in any such inquiry, and if they fail to reasonably cooperate, the request for approval of franchise transfer may be denied. Proprietary information shall be protected from disclosure to competitors to the extent permitted by law.
Determination by City.
In making a determination as to whether to grant, deny or grant subject to conditions an application for approval of a franchise transfer, the City Council shall consider the legal, financial and technical qualifications of the transferee to operate the system; whether any required waivers under applicable law are in the best interests of the public; whether the franchisee is in compliance with its franchise agreement and this Chapter and, if not, the proposed transferee's commitment to cure such non-compliance; and whether operation by the transferee on approval of the franchise transfer would adversely affect the City's interest under this Chapter, the franchise agreement, other applicable law or the public interest or make it less likely that the future cable-related needs and interests of the community would be satisfied.
The City shall make its determination in accordance with any time limits imposed by Federal law, including under 47 U.S.C. Section 537(e).
Any purported franchise transfer made without the City Council's prior written approval shall be void, and shall make a franchise subject to revocation at the City Council's sole discretion, and make any other remedies available to the City under the franchise or other applicable law. Acceptance of filing of an application for approval of a franchise transfer later than one hundred twenty (120) days before the purported effective date of the franchise transfer shall not validate the transaction or excuse the late filing, and in such an instance the City shall retain the right to make its decision regarding such a franchise transfer within one hundred twenty (120) days unless action is required sooner by law.
Transferee's agreement. No application for approval of a franchise transfer shall be granted unless and until the proposed transferee submits an agreement in writing that it will abide by and accept all terms of this Chapter and the franchise agreement, and that it will assume the obligations and liabilities, known and unknown, of the previous franchisee under this Chapter and the franchise agreement for all purposes, unless the City Council approves a modification of the franchise agreement pursuant to this Section in conjunction with its approval of the franchise transfer, in which case the proposed transferee's agreement shall refer to the franchise agreement as so modified.
Approval does not constitute waiver. Approval by the City Council of a franchise transfer does not constitute a waiver or release of any of the rights of the City under this Chapter or a franchise agreement, whether arising before or after the date of the franchise transfer; however, upon approval of a franchise transfer, the former franchisee shall be released from prospective liability under the franchise.
Public Proceedings. An applicant shall be notified of any public proceedings held in connection with the evaluation of its application and shall be given an opportunity to be heard thereat. Notice of all public proceedings of the City shall be published and posted in accordance with its usual practices.
Intergovernmental Cooperation. By resolution of the City Council, any part or all of the process established by this Section may be conducted in concert with other political subdivisions served or to be served by the applicant.
[Ord. No. 07-59 §1, 10-17-2007]
A video service provider shall construct, operate and maintain its video service network subject to the supervision of all of the authorities of the City who have jurisdiction in such matters and in compliance with all laws, ordinances, departmental rules and regulations affecting the system.
No construction, reconstruction or relocation of the video service network or any part thereof within the public rights-of-way shall be commenced until written permits have been obtained from the proper City Officials. If any permit is so issued, such officials may impose such conditions and regulations as a condition of the granting of the permit as are reasonably necessary for the purpose of protecting any structures or facilities in the public rights-of-way and for the proper restoration of such public rights-of-way and structures and facilities and for the protection of the public and the continuity of pedestrian and vehicular traffic.
The City Council may by resolution or ordinance, from time to time, issue such reasonable rules and regulations concerning the construction, operation and maintenance of the video service network as are consistent with the provisions of this Chapter and franchises and video service authorizations issued pursuant to this Chapter.
The construction, operation, maintenance and repair of a video service network shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code, the National Electric Code, National Cable Television Association Standards of Good Engineering Practices; Obstruction Marking and Lighting, Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; AT&T Manual of Construction Procedures (Blue Book); franchisee's Construction Procedures Manual; other Federal, State or local laws and regulations that may apply to the operation, construction, maintenance or repair of a video service network, including, without limitation, local zoning and construction codes and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that code or standard, if followed, would result in a video service network that could not meet requirements of Federal, State or local law). The City may adopt additional reasonable standards as required to ensure that work continues to be performed in an orderly and workmanlike manner, or to reflect changes in standards which may occur during the operation of the franchisee or video service provider.
All wires, cable lines and other transmission lines, equipment and structures shall be installed and located to cause minimum interference with the rights and convenience of property owners, including the City.
Without limiting the foregoing, antennae and their supporting structures (towers) shall be designed in accordance with the Uniform Building Code and Electronics Industry Association RS22A Specifications, as amended, and shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable Federal, State or local laws, codes and regulations, all as hereafter may be amended or adopted.
Without limiting the foregoing, all of a franchisee's plant and equipment, including, but not limited to, the antennae site, head-end and distribution system, towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures and apparatuses, shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices performed by experienced and properly trained maintenance and construction personnel so as not to endanger any person or property or to unreasonably interfere in any manner with the public rights-of-way or legal rights of any property owner including the City or unnecessarily hinder or obstruct pedestrian or vehicular traffic.
All safety practices required by law shall be used during construction, maintenance and repair of a video service network. A franchisee or video service provider shall install and maintain in use commonly accepted methods and devices to prevent failures and accidents that are likely to cause damage, injury or nuisance to the public.
A franchisee or video service provider shall not place facilities, equipment or fixtures where they will interfere with any cable, gas, electric, telephone, water, sewer or other utility facilities or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City of their use of any public rights-of-way.
Any and all public rights-of-way, public property or private property disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or construction of a video service network shall be repaired or replaced by the franchisee or video service provider within a reasonable time specified by the City.
A franchisee or video service provider shall, by a reasonable time specified by the City, protect, support, temporarily disconnect, relocate or remove discrete portions of its property when required by the City 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 City would be reasonably served thereby; provided however, that the franchisee may abandon any property in place if approved by the City in writing, and provided further that the franchisee shall not be required to make permanent changes in its facilities to accommodate the installation of another video service network, nor should it be required to make temporary changes solely to disrupt its business or otherwise provide an unfair advantage to a competitor. No action hereunder shall be deemed a taking of the property of a franchisee or video service provider and a franchisee or video service provider shall not be entitled to any compensation therefor. No location of any pole or wire-holding structure of a franchisee or video service provider shall be a vested interest.
If any action under the preceding Subsection is reasonably 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 or video service provider shall, after thirty (30) days' advance written notice, take action to effect the necessary changes requested. The franchisee or video service provider shall be reimbursed by such other person for costs reasonably incurred in taking such action. The City Council 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.
In the event of an emergency, or where a video service network creates or is contributing to an imminent danger to health, safety or property, the City may remove, relay or relocate the pertinent parts of that video service network without prior notice. No charge shall be made by franchisee or video service provider against the City for restoration and repair.
A franchisee or video service provider shall, on the request of the City or any person holding a permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings or oversized vehicles. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the franchisee or video service provider shall have the authority to require such payment in advance, except in the case where the request is made by the City on its own behalf, in which case no such payment shall be required. The franchisee or video service provider shall be given not less than forty-eight (48) hours' advance notice to arrange for such temporary wire changes unless the City Council has declared an emergency.
A franchisee or video service provider shall have the authority to trim trees that overhang a public right-of-way of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee or video service provider, at its own expense subject to the supervision and direction of the City. Trimming of trees on private property shall require written permission of the property owner. All cut materials shall be properly disposed.
A franchisee or video service provider shall use, with the owner's permission, existing underground conduits or overhead utility facilities whenever feasible and may not erect poles in public rights-of-way without the express written permission of the City Council, which permission shall not be unreasonably withheld. Copies of agreements for use of conduits or other facilities shall be filed with the City Clerk.
Trunk, feeder and drop cable may be constructed overhead where poles exist and electric, cable television or telephone lines are overhead, but where no overhead lines exist, all trunk, feeder and drop cable shall be constructed underground. Whenever and wherever all electric lines and telephone lines are moved from overhead to underground placement, all cable system or video service provider network cables shall be similarly moved and the cost of movement of its cable shall be solely the obligation of the franchisee or video service provider. In cases of new construction or property development where utilities are to be placed underground, on request of franchisee or video service provider, the developer or property owner shall give a franchisee or video service provider reasonable notice of the particular date on which open trenching will be available to franchisee or video service provider for installation of conduit, pedestals and/or vaults and laterals to be provided at the franchisee's or video service provider's expense. The franchisee or video service provider shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring facilities within the development shall be borne by the developer or property owner; except that if the franchisee or video service provider fails to install its conduit, pedestals and/or vaults and laterals within five (5) working days of the date the trenches are available as designated in the notice given by the developer or property owner, then should the trenches be closed after the five (5) day period, the cost of new trenching is to be borne by the franchisee or video service provider.
The City shall have the right to install and maintain free of charge upon any poles or within any conduit owned by a franchisee or video service provider any wire and pole fixtures that do not unreasonably interfere with the cable system or video service provider network operations of the franchisee or video service provider.
Any contractor or subcontractor used for work or construction, installation, operation, maintenance or repair of system equipment in public rights-of-way must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as a franchisee or video service provider would have under the franchise agreement and applicable laws if the work were performed by the franchisee or video service provider. The franchisee or video service provider must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced. The franchisee or video service provider shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with the franchise, video service authorization or other agreement between the parties and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed.
Upon failure of a franchisee or video service provider to commence, pursue or complete any work required by law or by the provisions of this Chapter to be done in any right-of-way within the time prescribed and to the reasonable satisfaction of the City, the City may, at its option, after thirty (30) days' notice to franchisee or video service provider, cause such work to be done and the franchisee or video service provider shall pay to the City the cost thereof in the itemized amounts reported by the City to franchisee or video service provider within thirty (30) days after receipt of such itemized report.
The franchisee or video service provider shall make no paving cuts or curb cuts in public rights-of-way except after written permission has been given by the City, which permission shall not unreasonably be withheld.
The franchisee or video service provider shall install in conduit all cable passing under any major roadway.
Use Of Public Property.
Should the grades or boundaries of the public rights-of-way which the franchisee or video service provider is authorized to use and occupy be changed at any time during the term of the franchise or video service authorization granted, the franchisee or video service provider shall, if necessary, at its own cost and expense, relocate or change its system so as to conform with the new grades or boundaries.
Any alteration to the existing water mains, sewerage or drainage system or to any City, State or other public structures or facilities in the public rights-of-way required on account of the construction of the system in the public rights-of-way shall be made at the sole cost and expense of the franchisee or video service provider. During any work of constructing, operating or maintaining of the video service network, the franchisee or video service provider shall also, at its own cost and expense, protect any and all existing structures and facilities belonging to the City and any other person. All work performed by the franchisee or video service provider pursuant to this Section shall be done in such reasonable manner prescribed by the City or other officials having jurisdiction thereover.
Interference With Public Projects. Nothing in this Chapter shall be in preference or hindrance to the right of the City and any board, authority, commission or public service corporation to perform or carry on any public works or public improvements of any description.
Publicizing Proposed Construction Work. Unless not possible due to emergency circumstances, franchisee or video service provider shall publicize proposed construction work at least ten (10) days prior to commencement of that work by causing written notice of such construction work to be delivered to the City Clerk.
[Ord. No. 07-59 §1, 10-17-2007]
[Ord. No. 07-59 §1, 10-17-2007]
Upon ninety (90) days' notice, the City of Bridgeton may require video service providers to adopt the following customer service requirements:
The video service provider or franchisee will maintain a local, toll-free or collect call telephone access line which may be available to its subscribers twenty-four (24) hours a day, seven (7) days a week;
The video service provider or franchisees shall have trained company representatives available to respond to customer telephone inquiries during normal business hours;
After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours shall be responded to by a trained company representative on the next business day;
Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under normal operating conditions, measured on a quarterly basis;
The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards provided under Subdivisions (1) to (4) of this Subsection, unless a historical record of complaints indicates a clear failure to comply;
Under normal operating conditions, the customer will receive a busy signal less than three percent (3%) of the time;
Customer service center and bill payment locations shall be open at least during normal business hours and shall be conveniently located;
Under normal operating conditions, each of the following four (4) standards shall be met no less than ninety-five percent (95%) of the time measured on a quarterly basis:
Standard installations shall be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution system;
Excluding conditions beyond the control of the operator, the video service provider shall begin working on "service interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The video service provider or franchisee must begin actions to correct other service problems the next business day after notification of the service problem;
The "appointment window" alternatives for installations, service calls and other installation activities will be either a specific time or, at maximum, a four (4) hour time block during normal business hours. The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer;
A video service provider or franchisee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment;
If a video service provider's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer must be contacted. The appointment shall be rescheduled, as necessary, at a time which is convenient for the customer;
Credits for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted.
Each video service provider shall maintain a local or toll-free telephone number for customer service contact.
[Ord. No. 07-59 §1, 10-17-2007]
The City reserves the right to regulate service and equipment rates to the maximum degree permitted by applicable State and Federal law. Each franchisee or video service provider shall comply with all such regulation provisions that the City may adopt and all Federal laws regarding rates. For franchisees, failure to comply shall constitute a material violation of a franchise. If a video service provider fails to comply, the injured party may bring action against the video service provider for non-compliance under Sections 67.2675 to 67.2714, RSMo.
[Ord. No. 07-59 §1, 10-17-2007]
Each video service provider providing video service in the City shall pay to the City a video service provider fee equal to five percent (5%) of the gross revenues of the video service provider.
The video service provider fee shall be paid to the City on or before the last day of the month following the end of each calendar quarter and shall be calculated as a percentage of gross revenues. Any payment made pursuant to Subsection (8) of Section 67.2703, RSMo., shall be made at the same time as the payment of the video service provider fee.
Any franchisee providing video service pursuant to a franchise agreement in existence prior to the date of this Chapter shall remain subject to the payment obligations of the franchise agreement until it expires or terminates pursuant to applicable State law.
[Ord. No. 07-59 §1, 10-17-2007]
Prior to any cable system construction, upgrade or other such work in the public rights-of-way, a franchisee or video service provider shall establish in the City's favor a performance bond to ensure the franchisee's or video service provider's faithful performance of the construction, upgrade or other work. The amount of such performance bond shall be equal to ten percent (10%) of the total cost of the work unless otherwise specified in the franchise agreement, if any.
In the event a franchisee or video service provider subject to such a performance bond fails to complete the cable system or video service provider network construction, upgrade or other work in the public rights-of-way in a safe, timely and competent manner, after notice and a reasonable opportunity to cure, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the franchisee or video service provider, or the cost of completing or repairing the cable system or video service provider network construction, upgrade or other work in the public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund where such amount exceeds that available under a security fund.
Upon completion of the cable system or video service provider network construction, upgrade or other such work in the public rights-of-way and payment of all construction obligations of the video service network to the satisfaction of the City, the City shall eliminate the bond after a time appropriate to determine whether the work performed was satisfactory, which time shall be established considering the nature of the work performed.
The performance bond shall be issued by a surety with a B+7 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City Attorney; and shall contain the following endorsement: "This bond may not be canceled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
Failure Constitutes Material Violation. For a franchisee, failure to maintain a required security fund, letter of credit or performance bond shall constitute a material violation of a franchise. If any video service provider is operating in the City pursuant to authorization, other than a franchise issued by the City, and fails to comply with the bond requirements, the injured party may bring action against the video service provider for non-compliance with the requirements of Sections 67.2675 to 67.2714, RSMo.
Shortening, Revocation Or Termination Of Franchise.
The City shall have the right to shorten the term of a franchise to a term not less than thirty-one (31) months from the date of the action shortening the franchise term, or to revoke the franchise, for a franchisee's substantial and ongoing failure to construct, operate or maintain the cable system as required by this Chapter or a franchise agreement; for defrauding or attempting to defraud the City or subscribers; if the franchisee is declared bankrupt; or for any other substantial and ongoing material violation of this Chapter or substantial and ongoing material violation of a franchise agreement. To invoke the provisions of this Section, the City Council shall give the franchisee written notice of such intent. If within thirty (30) calendar days following such written notice from the City to the franchisee, the franchisee has not completed corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the City Council, the City Council may give written notice to the franchisee of its decision to commence a proceeding to consider shortening the term of or revoking the franchise, stating its reasons; provided that no opportunity to cure shall be afforded in the event the franchisee is declared bankrupt. Revocation for bankruptcy shall be governed by Subsection (C)(3).
Prior to shortening the term of or revoking a franchise, the City Council shall hold a public hearing after giving at least fifteen (15) calendar days' notice by posting and publication, at which time the franchisee and the public shall be given an opportunity to be heard. Following the public hearing, the City Council may determine whether to shorten the franchise term or to revoke the franchise based on the information presented at the hearing and other information of record. If the City Council determines to shorten a franchise term or revoke a franchise, it shall make such decision by ordinance setting forth the reasons for its decision. The City may make such decision conditional on a franchisee's failure to resolve outstanding problems or take appropriate steps to resolve such problems within a specific period of time. A copy of such decision shall be provided to the franchisee.
Any franchise may, at the option of the City Council following a public hearing, be revoked by ordinance one hundred twenty (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 the franchisee, whether in a receivership, reorganization, bankruptcy, assignment for the benefit of creditors or other action or proceeding, unless within that one hundred twenty (120) day period:
Such assignment, receivership or trusteeship has been vacated; or
Such assignee, receiver or trustee has fully complied with the terms and conditions of this Chapter and the existing franchise agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this Chapter and the existing franchise agreement.
In the event of foreclosure or other judicial sale of a material portion of the facilities, equipment or property of a franchisee (other than pursuant to a pledge or mortgage which qualified as a exception to the definition of a "franchise transfer" and after which the franchise transfer was ultimately approved), the City Council may revoke the franchise, following a public hearing before the City Council 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 thirty (30) calendar days after serving such notice, unless:
If the City Council revokes a franchise, if a franchise expires or if for any other reason a franchisee abandons, terminates or fails to operate or maintain service to its subscribers after notice and reasonable opportunity to cure of at least thirty (30) days, and the franchisee fails to obtain video service authorization from the Missouri Public Service Commission, the following procedures and rights are effective:
The City Council may require the former franchisee to remove its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the City Council may have the removal done at the former franchisee's or surety's expense. In removing its plant, structures and equipment, the franchisee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as prevailed prior to the franchisee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. The liability, indemnity and insurance as provided herein shall continue in full force and effect during the period of removal and until full compliance by the franchisee with the terms and conditions of this Subsection and this Chapter. In the event of a failure by the franchisee to complete any such work or any other work required by City law or ordinance within the time as may be established and to the reasonable satisfaction of the City, the City may cause such work to be done and the franchisee shall reimburse the City the reasonable cost thereof within thirty (30) days after receipt of an itemized list of such costs.
[Ord. No. 07-59 §1, 10-17-2007]
Each video service provider shall designate a number of channels for public, educational and governmental programming consistent with Section 67.2703, RSMo.; provided that any greater number of channels, as may be required in the franchise agreement, shall be required pursuant to Section 67.2703.2, RSMo. The City shall bear no cost relating to the transmission, availability or maintenance of such channels unless expressly authorized by the City in writing and approved by the Governing Body. Video service providers shall provide support for such public, educational and governmental channels consistent with Section 67.2703.8, RSMo.
[Ord. No. 07-59 §1, 10-17-2007]
Compliance With Laws. Each franchisee and video service provider shall comply with all Federal and State laws as well as City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established during the entire term of its franchise or video service authorization.
Captions. The captions to Sections throughout this Chapter are intended solely to facilitate reading and reference to the Sections and provisions of this Chapter. Such captions shall not affect the meaning or interpretation of this Chapter.
Rights And Remedies.
The rights and remedies reserved to the City by this Chapter are cumulative and shall be in addition to, and not in derogation of, any other rights and remedies which the City may have with respect to the subject matter of this Chapter.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this Chapter.
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.
No franchisee or video service provider shall be relieved of its obligation to comply with any of the provisions of this Chapter by reason of any failure of the City to enforce prompt compliance. Nor shall any inaction by the City be deemed to waive a provision or render void any provision of this Chapter.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter or any franchise agreement, and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the day of the act, event or default after which the designated period of time begins to run and include the last day of the prescribed or fixed period of time, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the next day which is neither a Saturday, Sunday or legal holiday. If the period is less than seven (7) days, intermediate Saturday, Sunday and legal holidays shall be excluded in the computation. This Subsection shall not apply in the context of obligations which continue on a daily basis, such as the obligation to operate a cable system.
Severability. If any term, condition or provision of this Chapter shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the City and shall thereafter be binding on the franchisee and the City.