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17, 2007, repealed ch. 675 "cable communications regulatory code"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.
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.
Shall have the meaning ascribed to such term in 47 U.S.C.
Section 522(5).
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.
The Governing Body of the City.
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.
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.
The area of the City that a franchisee is authorized to serve
by its franchise agreement.
Any transaction in which:
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
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
The rights or obligations held by the franchisee under the franchise
are transferred, directly or indirectly, to another person.
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.
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.
Notwithstanding the foregoing, "franchise transfer" does not
include:
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
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
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 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.:
Recurring charges for video service;
Event-based charges for video service, including, but not limited
to, pay-per-view and video-on-demand charges;
Rental of set top boxes and other video service equipment;
Service charges related to the provision of video service, including,
but not limited to, activation, installation, repair and maintenance
charges;
Administrative charges related to the provision of video service,
including, but not limited to, service order and service termination
charges; and
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.
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Gross revenues do not include:
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a.
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Discounts, refunds and other price adjustments that reduce the
amount of compensation received by an entity holding a video service
authorization;
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b.
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Uncollectibles;
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c.
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Late payment fees;
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d.
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Amounts billed to video service subscribers to recover taxes,
fees or surcharges imposed on video service subscribers or video service
providers in connection with the provision of video services, including
the video service provider fee authorized by this Chapter;
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e.
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Fees or other contributions for PEG or I-Net support; or
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f.
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Charges for services other than video service that are aggregated
or bundled with amounts billed to video service subscribers, if the
entity holding a video service authorization reasonably can identify
such charges on books and records kept in the regular course of business
or by other reasonable means.
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g.
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Except with respect to the exclusion of the video service provider
fee, gross revenues shall be computed in accordance with generally
accepted accounting principals.
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An apartment, a house, a mobile home or any other structure
or part of a structure intended for residential occupancy as separate
living quarters.
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.
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.
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.
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.
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.
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).
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.
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.
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.
Any person that distributes video service through a video
service network pursuant to a video service authorization; including
a franchisee.
The fee imposed under Section 67.2689, RSMo.
[Ord. No. 07-59 §1, 10-17-2007]
A.
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.
B.
Length Of Franchise. No franchise shall initially be granted
for a period of more than twenty (20) years or less than four (4)
years.
C.
Franchise Characteristics.
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
D.
Franchisee Subject To Other Laws, Police Power.
1.
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.
2.
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.
3.
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.
E.
Interpretation Of Franchise Terms.
1.
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.
2.
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.
F.
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.
G.
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]
A.
Application For Modification Of A Franchise.
1.
An application
for modification of a franchise agreement shall include, at minimum,
the following information:
a.
The
specific modification requested;
b.
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;
c.
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;
d.
Any
other information that the applicant believes is necessary for the
City to make an informed determination on the application for modification;
and
e.
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.
2.
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.
B.
Franchise Transfers.
1.
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.
2.
Application.
a.
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.
b.
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:
(1)
All information and forms required under Federal law;
(2)
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;
(3)
Any contracts, financing documents or other documents that relate
to the proposed transaction, and all documents, schedules, exhibits
or the like referred to therein;
(4)
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;
(5)
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;
(6)
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.
c.
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.
3.
Determination by City.
a.
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.
b.
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).
c.
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.
4.
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.
5.
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.
C.
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.
D.
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.
Construction Procedures.
1.
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.
2.
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.
3.
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.
B.
Construction Standards.
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
The
franchisee or video service provider shall install in conduit all
cable passing under any major roadway.
C.
Use Of Public Property.
1.
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.
2.
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.
D.
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.
E.
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]
A.
Upon
ninety (90) days' notice, the City of Bridgeton may require video
service providers to adopt the following customer service requirements:
1.
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;
2.
The
video service provider or franchisees shall have trained company representatives
available to respond to customer telephone inquiries during normal
business hours;
3.
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;
4.
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;
5.
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;
6.
Under
normal operating conditions, the customer will receive a busy signal
less than three percent (3%) of the time;
7.
Customer
service center and bill payment locations shall be open at least during
normal business hours and shall be conveniently located;
8.
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:
a.
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;
b.
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;
c.
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;
d.
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;
e.
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;
10.
Credits
for service shall be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
B.
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]
A.
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.
B.
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.
C.
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]
A.
Performance Bond.
1.
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.
2.
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.
3.
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.
4.
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."
B.
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.
C.
Shortening, Revocation Or Termination Of Franchise.
1.
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).
2.
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.
3.
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:
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 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.
c.
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:
4.
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:
a.
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]
A.
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.
B.
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.
C.
Rights And Remedies.
1.
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.
2.
The
City hereby reserves to itself the right to intervene in any suit,
action or proceeding involving any provision of this Chapter.
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
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.
D.
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.
E.
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.
