[Ord. No. 1419 §1, 11-4-1997]
This Chapter shall be known as the Versailles Cable Television Franchise Ordinance. The purposes of this Chapter are:
To establish the terms and conditions under which a cable television system must operate within Versailles, Missouri (which may hereafter be referred to as "City", "franchising authority" or "grantor");
To provide for the payment of a franchise fee to the City for costs associated with administering and regulating the system; and
To grant a cable television franchise to Falcon Cablevision (hereafter referred to as "Falcon" or "grantee").
[Ord. No. 1419 §2, 11-4-1997]
For the purposes of this Chapter, the following terms, phrases, words and their derivations shall have the meaning defined herein, unless the context clearly indicates that another meaning is intended. Words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number.
- CABLE ACT
- The Cable Communications Policy Act of 1984 as modified by The Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996.
- CABLE TELEVISION SYSTEM
- Any non-broadcast facility consisting of a set of transmission paths and associated signal reception, transmission and control equipment that is designed to distribute to subscribers or other users audio, video and other forms of communications services via electronic or electrical signals.
- A band of frequencies in the electromagnetic spectrum capable of carrying one (1) audio-visual television signal.
- Versailles, Missouri, in its present form or in any later reorganized, consolidated, enlarged or reincorporated form, which is legally authorized to grant a cable television franchise under State and Federal law. The City may also be referred to as "franchising authority" or "grantor".
- Falcon Cablevision, which may also be referred to as "grantee".
- The Federal Communications Commission.
- The rights granted pursuant to this Chapter to construct, own and operate a cable television system along the public ways in the City or within specified areas in the City.
- FRANCHISE AREA
- That portion of the City for which a franchise is granted under the authority of this Chapter. If not otherwise stated in an exhibit to this Chapter, the franchise area shall be the legal and geographic limits of the City, including all territory which may be hereafter annexed to the City.
- FRANCHISING AUTHORITY
- Versailles, Missouri, its Board of Aldermen acting as the City's duly elected Governing Body, its lawful successor or such other person or body duly authorized by the City to grant a cable television franchise.
- A person or business entity or its lawful successor or assignee which has been granted a franchise by the City pursuant to this Chapter.
- GROSS SUBSCRIBER RECEIPTS
- The term is used in calculating franchise fees and means revenues actually received by the Grantee from television services it provides to its subscribers in Versailles after deducting the following:
- 1. Any fees or assessments levied on subscribers or users of the system which are collected by the grantee for payment to a governmental entity;
- 2. Franchise fees paid by the grantee to the City;
- 3. State or local sales or property taxes imposed on the grantee and paid to a governmental entity; and
- 4. Federal copyright fees paid by the grantee to the Copyright Tribunal in Washington, DC.
- NORMAL BUSINESS HOURS
- Those hours during which most similar businesses in the community are open to serve customers.
- NORMAL OPERATING CONDITIONS
- Those service conditions which are within the control of the grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the cable system.
- PUBLIC WAY OR RIGHT-OF-WAY
- The surface, the airspace above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways or other public right-of-way including public utility easements or rights-of-way and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City which shall entitle the City and the grantee to the use thereof for the purpose of installing and maintaining the grantee's cable television system.
- Any public elementary or secondary school.
- SERVICE INTERRUPTION
- The loss of picture or sound on one (1) or more cable channels.
- Any person who receives monthly cable television service provided by the grantee's cable television system.
[Ord. No. 1419 §3, 11-4-1997]
It shall be unlawful to operate a cable television system within the City unless a valid franchise has first been obtained from the City pursuant to the terms of this Chapter. A franchise granted pursuant to this Chapter shall authorize the grantee to provide cable television services within the City and to charge subscribers for such services. It shall also authorize and permit the grantee to traverse any portion of the City in order to provide service outside the City. Unless otherwise specified, the franchise area shall be the legal boundaries of the City.
[Ord. No. 1419 §4, 11-4-1997]
A franchise is hereby granted to Falcon Cablevision (which may be referred to herein as "Falcon" or "grantee") to operate and maintain a cable television system in the City for a period of fifteen (15) years commencing on the date of adoption of this Chapter. Falcon shall have the option to renew this franchise for an additional term of five (5) years, provided that it is in substantial compliance with the material terms of this Chapter at the time of its expiration.
[Ord. No. 1419 §5, 11-4-1997]
The grantee shall pay a franchise fee which is intended to compensate the City for all costs which may be associated with administering or regulating grantee's cable system. The amount of the franchise fee shall be five percent (5%) of the grantee's annual gross subscriber receipts as defined herein. Such fee shall be paid on an annual basis. Grantee shall be entitled to list the franchise fee as a separate line item on monthly bills.
Due to Federal and local regulations requiring that grantee notify cable subscribers at least thirty (30) days prior to the effective date of any increases in monthly charges on subscriber bills, any increased franchise fee amounts which may be due to the City shall begin accruing sixty (60) days following the effective date of this Chapter. If the City requires more than thirty (30) days' notice to subscribers of increased rates, then any increased franchise fee amounts which may be due to the City shall begin accruing sixty (60) days after the City's required notice period.
At the City's request, the grantee shall file a report showing grantee's gross subscriber receipts for the calendar year and the amount of franchise fees due to the City. Such reports may be requested once per calendar year. The grantee shall have an obligation to maintain financial records of its gross subscriber receipts and grantee fee payments for audit purposes for a period of three (3) years and the City shall have the right to audit the grantee's books at the offices where such books are maintained.
[Ord. No. 1419 §6, 11-4-1997]
All charges to subscribers shall be consistent with a schedule of fees for services offered and established by the grantee. Rates shall be non-discriminatory in nature and uniform to persons of like classes under similar circumstances and conditions.
The grantee will provide the City with thirty (30) days' advance written notice of any change in rates and charges whenever possible.
Grantee may offer different or discounted rates at its discretion for promotional purposes and may establish different rates for different classes of subscribers where appropriate, such as offering discounted rates to low income individuals or groups or bulk rates to multiple-unit dwellings.
Grantee shall inform each new subscriber of all applicable fees and charges for providing cable television service.
Grantee may, at its own discretion and in a non-discriminatory manner, waive, reduce or suspend connection fees, monthly service fees or other charges on a one-time or monthly basis for promotional purposes.
Grantee may refuse to provide service to any person because a prior account with that person remains due and owing.
A grantee may offer service which requires advance payment of periodic service charges.
The grantee shall provide refunds to subscribers in the following cases:
If the grantee fails within a reasonable time to commence service requested by a subscriber, it will refund all deposits or advance charges that the subscriber has paid in connection with the request for such service at the request of the subscriber.
If a subscriber terminates any service at any time and has a credit balance for deposits or unused services, upon request from the subscriber and upon return of all of grantee's equipment, the grantee will refund the appropriate credit balance to the subscriber. The subscriber will be responsible for furnishing the grantee a proper address to which to mail the refund.
If any subscriber's cable service is out of order for more than forty-eighty (48) consecutive hours during the month due to technical failure, damage or circumstances within the control of the grantee, the grantee will credit the account of that subscriber on a pro rata basis upon the subscriber's written request. The credit will be calculated using the number of twenty-four (24) hour periods that service is impaired and the number of channels on which service is impaired as a fraction of the total number of days in the month that the service impairment occurs and the total number of channels provided by the system in the absence of an impairment.
[Ord. No. 1419 §7, 11-4-1997]
Cable System Office Hours And Telephone Availability. The grantee will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers twenty-four (24) hours per day, seven (7) days per week. Trained company representatives will be 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 must be responded to by a trained company representative on the next business day. Customer service center and bill payment locations will be open at least during normal business hours.
Installation, Outages And Service Calls.
Standard installations will 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 grantee, the grantee will begin working on service interruptions promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The grantee 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 a four (4) hour time block during normal business hours. The grantee may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.
If grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer.
If the grantee's service representative appears for an appointment scheduled by a customer within the time period promised and no one is present at the customer's dwelling to permit necessary physical access to the dwelling unit, then grantee may charge the customer for the service call up to a maximum of twenty-five dollars ($25.00).
[Ord. No. 1419 §8, 11-4-1997]
The Grantee shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers and at any time upon request: products and services offered; prices and options for programming services and conditions of subscription to programming and other services; installation and services maintenance policies; instructions on how to use the cable service; channel positions of programming carried on the system; and billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office.
Customers will be notified of any changes in rates, programming services or channel positions thirty (30) days in advance of such changes if the change is within the control of the grantee. In addition, the grantee shall notify subscribers thirty (30) days in advance of any significant changes in the other information required by paragraph (c)(3)(i)(A) of this Section. Notwithstanding any other provision of Part 76, grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee or any other fee, tax, assessment or charge of any kind imposed by any Federal agency, State or franchising authority on the transaction between the grantee and the subscriber.
Bills will be clear, concise and understandable. Bills will be itemized with itemizations including basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. In case of a billing dispute, the grantee must respond to a written complaint from a subscriber within thirty (30) days.
Refund checks will be issued promptly but no later than either: the customer's next billing cycle following resolution of the request or sixty (60) days or the return of the equipment supplied by the grantee if service is terminated.
Credits for services will be issued no later than the customer's next billing cycle following the determination that a credit is warranted.
[Ord. No. 1419 §9, 11-4-1997]
Grantee shall be responsible for insuring that the cable system is designed, installed and operated in a manner that fully complies with Federal Communications Commission (FCC) rules regarding cable television technical standards. Grantee shall be prepared to show, on request by an authorized representative of the Commission or the franchising authority, that the system does, in fact, comply with the rules.
Grantee shall conduct complete performance tests of the system at least twice each calendar year (at intervals not to exceed seven (7) months) and shall maintain the resulting test data on file at the grantee's local business office for at least five (5) years. The test data shall be made available for inspection by the Commission or the local franchiser upon request. The performance test shall be directed at determining the extent to which the system complies with all the technical standards set forth in Section 76.605(a) of the Commission's rules.
[Ord. No. 1419 §10, 11-4-1997]
A grantee which is not already serving the entire franchise area shall provide service to all portions of the franchise area reaching a minimum density of thirty (30) dwelling units per linear strand mile, as measured from the nearest coaxial cable line, within twelve (12) months after the grant of a franchise.
Grantee shall provide aerial or buried drop lines to new subdivisions within the franchise area at the request of the developer provided that the developer contracts and agrees with the grantee to pay the cost of the extension of the service.
Grantee shall extend and make cable television service available to any resident within the franchise area who requests connection at the standard connection charge if the connection to the resident would require no more than a standard one hundred fifty (150) foot aerial drop or a seventy-five (75) foot buried drop line or extension from the nearest coaxial feeder cable. With respect to requests for connection requiring an aerial or buried drop line in excess of the maximum standard distance, grantee shall extend and make available cable television service to such residents at a connection charge not to exceed its actual costs for the distance exceeding the standard one hundred fifty (150) feet of aerial or seventy-five (75) feet of underground cable respectively.
In areas with fewer than thirty (30) residential units per proposed cable-bearing strand mile, grantee shall offer a cost-sharing arrangement with residents. A dwelling unit will be counted for this purpose if its lot fronts a street. The cost-sharing arrangement shall consist of the following:
At the request of a resident desiring service, grantee shall determine the cost of the plant extension required to provide service to the potential subscriber from the closest point on the cable system where it is technically feasible. The cost of construction shall be allocated based on the following formula:
If a request for extension of service into a residential area requires the construction of cable plant which does not pass at least thirty (30) potential subscribers per proposed cable- bearing strand mile, grantee and residents who agree to subscribe to cable service will each bear their proportionate share of construction costs. For example, if there are five (5) dwelling units per proposed cable-bearing strand mile, grantee's share will equal five-thirtieths (5/30ths) or one-sixth (1/6) of the construction cost. The remaining cost will be shared equally by each subscriber.
Should additional residents actually subscribe to cable television service in areas where subscribers have already paid a proportionate share under the extension cost-sharing formula, subscribers who have previously paid a proportionate share under the extension formula shall be reimbursed pro rata for their contribution or a proportional share thereof. In such case, the pro rata shares shall be recalculated and each new subscriber shall pay the new pro rata share and all subscribers who previously paid a proportionate share shall receive pro rata refunds. In the event such subscribers (or prior subscribers) have been disconnected or have moved and owe the grantee money which has not been recovered, grantee shall have the right to first apply the refund to amounts owed the grantee and give the balance, if any, to the subscriber. At such time as there are thirty (30) potential subscribers per cable-bearing strand mile, the subscribers shall receive their pro rata share of construction costs. In any event, one (1) year after the completion of a project, subscribers who have paid a share of line extension costs are no longer eligible for refunds and the amounts paid in construction costs will be credited to the plant account of grantee.
Where the density of residential dwelling and occupied commercial or industrial structures, adverse terrain or other factors render extension of the system and offering of cable service impractical, technically infeasible or would create an economic hardship, the City may, upon petition of the grantee, either waive the extension of the system into such areas or allow the extension and offer of service on special terms or conditions which are reasonable and fair to the City, the grantee and potential subscribers in such areas.
[Ord. No. 1419 §11, 11-4-1997]
Grantee shall provide, without charge, one (1) service outlet activated for basic subscriber service to each Police station, fire station, public school, public library and the City office. If it is necessary to extend grantee's trunk or feeder lines more than two hundred (200) feet solely to provide service to any such school or public building, the City or the building owner or occupants shall have the option of either paying grantee's direct costs for line extensions in excess of two hundred (200) feet or releasing the grantee from the obligation to provide service to such building. Furthermore, grantee shall be permitted to recover the direct cost of installing cable service, when requested to do so, in order to provide:
[Ord. No. 1419 §12, 11-4-1997]
System Upgrade. Grantee agrees to upgrade its cable system to provide the capability to cablecast no less than forty-two (42) channels, said upgrade shall be completed within two (2) years from the effective date of this franchise ordinance. Grantee also agrees to install noise reduction units or their technical equivalent, on the system's off-air channels to eliminate electrical interference.
PEG Access Channel. In conjunction with the cable system upgrade, grantee agrees to set aside one (1) channel on its cable system for community access purposes. Grantee further agrees to provide one (1) character generator for placement in Versailles City Hall and a communications return path from City Hall to the cable system's headend so that City Officials will have the ability to transmit alpha-numeric text City-wide over the City's access channel.
Programming. The grantee agrees to add the following programming options: CNN Headline News, Community Access Channel, Home Box Office, American Movie Classics, Lifetime, The History Channel, Sci-Fi Channel and The Learning Channel. Four (4) of the above channels will be added within three (3) months from completion of the system upgrade, the remaining channels will be added within twelve (12) months from completion of the system upgrade.
Periodic Review. In connection with the City's needs assessment, the grantee agrees to cooperate with the City by participating in the periodic review of cable system service and operations. Said reviews shall not be conducted more frequently than once per calendar year.
[Ord. No. 1419 §13, 11-4-1997]
Within ninety (90) days following the grant of a franchise, the grantee shall obtain the following insurance policies:
A general comprehensive liability policy indemnifying, defending and saving harmless the City, its officers, boards, commissions, agents or employees from any and all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of the grantee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of five hundred thousand dollars ($500,000.00) per personal injury, death of any one (1) person or damage to property and one million dollars ($1,000,000.00) for personal injury, death of any two (2) or more persons in any one (1) occurrence or damage to property.
All insurance policies called for herein shall be in a form satisfactory to the City and shall require thirty (30) days' written notice of any cancellation to both the City and the grantee. The grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for and file with the City written evidence of the issuance of replacement policies within thirty (30) days following receipt by the City or the grantee of any notice of cancellation. In recognition of the foregoing each party agrees to cause their respective insurance carriers to waive any rights of subrogation.
[Ord. No. 1419 §14, 11-4-1997]
The grantee, by its acceptance of a franchise granted pursuant to this Chapter, shall indemnify and hold harmless the City, its officials, boards, commissions and employees against any and all claims, suits, causes of action, proceedings and judgments for damage arising out of the award of a franchise to the grantee and its operation of the cable television system under the franchise. These damages shall include, but not be limited to, penalties arising out of copyright infringements and damages arising out of any failure by grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's cable television system whether or not any act or omission complained of is authorized, allowed or prohibited by the franchise.
[Ord. No. 1419 §15, 11-4-1997]
Before exercising any right of redress available to it under the terms of this Chapter, including determination of any penalty assessable under applicable law, the City shall follow the procedures set forth in this Section.
The City shall notify grantee in writing by certified mail of any alleged violation ("violation notice") which notice shall include a detailed description of any alleged violation and a request for cure of such violation.
Grantee shall have thirty (30) days from the date of receipt of such notice to respond in writing indicating:
Grantee has cured the alleged violation, providing reasonable documentation demonstrating that the alleged violation has been cured;
Grantee has commenced or will commence actions to cure the alleged violation, but that the alleged violation cannot reasonably be cured immediately, describing the steps taken to be taken or to cure the alleged violation; or
Grantee disagrees with the allegation that a violation has occurred and contests the violation notice stating the reasons therefor.
Upon receipt of grantee's response to the violation notice, the City may either accept grantee's proposed cure and/or explanation or if it believes that the violation will not be cured within a reasonable period of time, the City may schedule an administrative hearing, providing grantee no less than fifteen (15) days' written notice of the hearing which shall afford grantee due process including an opportunity to present evidence.
Within fifteen (15) days following an administrative hearing on an alleged violation, the City shall issue a written report stating its findings and the reasons therefor. The City may determine:
That the alleged violation has been corrected or is in the process of being corrected by grantee and that no further action is required;
That an extension of the time or other appropriate relief should be granted until the cure for the problem can be completed by grantee;
That the problem is beyond grantee's direct control and that grantee is not at fault; or
That other appropriate action should be taken.
In cases involving construction codes or technical standards, if the alleged violation does not pose a substantial and immediate safety hazard, grantee shall be allowed a reasonable and sufficient time to complete any required corrections or repairs to the system to remedy any alleged non-compliance. So long as grantee is making a good faith effort to correct the alleged non-compliance, no penalties shall be assessed. A "substantial and immediate safety hazard" shall be defined as one posing an imminent likelihood of injury to persons if not repaired immediately. Grantee shall not be penalized for other minor violations of the franchise or applicable codes, so long as it demonstrates it is making good faith efforts to correct any problem or violation within a reasonable period of time of the discovery of alleged violation.
[Ord. No. 1419 §16, 11-4-1997]
For violation of the customer service standards contained in this franchise, subject to the notice and cure procedures contained in Section 615.150, the franchise may be subject to penalties as described below. All fines shall be due within thirty (30) days of a final administrative hearing and shall not begin to accrue until after the grantee has had an opportunity to cure.
For failure to meet the following customer service requirements on a per day/per instance basis, penalties may be assessed as follows:
Failure to maintain twenty-four (24) hour toll-free or collect-call telephone access line — seventy-five dollars ($75.00).
Failure to provide the requisite written information to subscribers — twenty-five dollars ($25.00).
Failure to provide refunds as required — twenty-five dollars ($25.00).
For failure to meet the following customer service standards ninety percent (90%) of the time as measured on a quarterly basis, penalties may be assessed as follows:
Failure to meet the telephone answering standards — three hundred dollars ($300.00).
Failure to meet the response to service interruptions standard — three hundred dollars ($300.00).
Failure to meet the installation within seven (7) business day standard — two hundred fifty dollars ($250.00).
Failure to meet the standard for maintaining scheduled appointments — two hundred fifty dollars ($250.00).
[Ord. No. 1419 §17, 11-4-1997]
In the event of a formal denial of renewal or revocation of a franchise, which denial or revocation is upheld by final judicial adjudication of any appeal(s) which may be filed, the grantee shall be have a period of one (1) year from such final adjudication within which to transfer or convey the assets of the cable system to another owner. Approval of such proposed transfer or assignment shall not be unreasonably withheld by the City.
In the event the franchise term expires prior to formal action being taken by the City either to renew the franchise or deny renewal, the term of this franchise shall automatically be extended until such time as formal action to renew or deny renewal is taken by the City. The renewal procedures and criteria contained in Section 626(c) of the Cable Communications Policy Act of 1984, as amended, shall be followed by the City and the grantee.
[Ord. No. 1419 §18, 11-4-1997]
In the event the grantee is prevented or delayed in the performance of any of its obligations under this Chapter by reason of flood, fires, hurricanes, tornadoes, earthquakes or other acts of God, unavoidable casualty, insurrections, war, riot, sabotage, unavailability of materials or supplies, vandalism, strikes, boycotts, lockouts, labor disputes, shortage of labor, unusually severe weather conditions, acts or omissions or delays by utility companies upon whom grantee is dependent for pole attachments or easement use, grantee is unable to obtain necessary financing or any other event which is beyond the reasonable control of the grantee, the grantee shall have a reasonable time under the circumstances to perform its obligations under this Chapter or to procure a reasonable and comparable substitute for such obligations. Under such circumstances the grantee shall not be held in default or non-compliance with the provisions of the Chapter nor shall it suffer any penalty relating thereto.
[Ord. No. 1419 §19, 11-4-1997]
An application for a new cable television franchise shall be submitted to the City in a form specified by or acceptable to the City and in accordance with procedures and schedules established by the City. The City may request such facts and information as it deems appropriate.
Upon request, any applicant shall furnish to the City a map of suitable scale, showing all roads and public buildings, which indicates the areas to be served and the proposed dates of commencement of service for each area. The proposed service area shall be subject to approval by the City. If approved, the service area shall be incorporated into any franchise granted pursuant to this Chapter. If no service area is specifically delineated in a franchise, it shall be considered to be coterminous with the boundaries of the City.
After receiving an application for a franchise, the City shall examine the legal, financial, technical and character qualifications of the applicant. The City may grant one (1) or more non-exclusive franchises creating a right to construct and operate a cable television system within the public ways of the City, subject to the provisions of this Section.
In the event an application is filed proposing to serve a franchise area which overlaps, in whole or in part, an existing grantee's franchise area, a copy of such application shall be served upon any existing grantee by the City by registered or certified mail. Such notice shall be considered a condition precedent to consideration of the application for a franchise by the City.
Competing Service Providers.
Any franchise granted by the City shall be non-exclusive. However, nothing in this Chapter shall be construed to require it to grant more than one (1) franchise if the City determines, pursuant to the procedures established in this Chapter, that granting additional franchises would be detrimental to the public interest.
In the event a competing service provider commences operation of a communications facility which offers services similar to those offered by grantee, the City shall not require grantee to operate under terms or conditions otherwise required by this Chapter which are either less favorable or more burdensome than those under which the competing service provider must operate. Any franchise which may be granted by the City to a competing service provider shall require the new grantee to provide cable service to the entire franchise area then served by the existing grantee. An existing grantee may, at its discretion, comply with the most favorable terms contained in any subsequent franchise granted by the City.
Since competing or overlapping franchises may have an adverse impact on the public rights-of-way, on the quality and availability of communications services to the public and may adversely affect the existing operator's ability to continue to provide the services and facilities it is presently providing under this Chapter, the City may issue a franchise in an area where another grantee is operating only following a public hearing to consider the potential impact which the grant of an additional franchise may have on the community. In considering whether to grant one (1) or more additional franchises, the City shall specifically consider and address in a written report the following issues:
The positive and/or negative impact of an additional franchise on the community.
The ability and willingness of the specific applicant in question to provide cable television service to the entire franchise area which is served by the existing cable operator. The purpose of this Subsection is to ensure that any competition which may occur among grantees will be on equal terms and conditions so as not to give a competitive advantage to one grantee over another.
The amount of time it will take the applicant to complete construction of the proposed system and activate service in the entire franchise area; and whether the applicant can complete construction and activation of its system in a timely manner.
The financial capabilities of the applicant and its guaranteed commitment to make the necessary investment to erect, maintain and operate the proposed cable TV system for the duration of the franchise term. In order to ensure that any prospective grantee does have the requisite current financial capabilities, the City may request equity and debt financing commitment letters, current financial statements, bonds, letters of credit or other documentation to demonstrate to the City 's satisfaction that the requisite funds to construct and operate the proposed system are available.
The quality and technical reliability of the proposed system, based upon the applicant's plan of construction and the method of distribution of signals, and the applicant's technical qualifications to construct and operate such system.
The experience of the applicant in the erection, maintenance and operation of a cable television system.
The capacity of the public rights-of-way to accommodate one (1) or more additional cable systems and the potential disruption of those public rights-of-way and private property that may occur if one (1) or more additional franchises are granted.
The disruption of existing cable television service and the potential that the proposed franchise would adversely affect the residents of the City.
The likelihood and ability of the applicant to continue to provide competing cable television service to subscribers within the entire franchise area for the duration of the franchise.
Such other information as the City may deem appropriate to be considered prior to granting any competing or overlapping franchise.
Permits For Non-Franchised Entities. The City may issue a license, easement or other permit to a person other than the grantee to permit that person to traverse any portion of the grantee's franchise area within the City in order to provide service outside but not within the City. Such license or easement, absent a grant of a franchise in accordance with this Chapter, shall not authorize nor permit said person to provide cable television service of any type to any home or place of business within the City nor render any other service within the City.
[Ord. No. 1419 §20, 11-4-1997]
A grantee may transfer or assign its franchise to another entity (the "assignee") upon thirty (30) days' notice to the City. The grantee shall provide to the City a reasonable showing that the proposed assignee or transferee possesses the technical and financial qualifications to operate the cable TV system properly. The proposed transferee or assignee shall provide the City with a written statement that it agrees to comply with all material terms of the franchise to be transferred. The City shall not unreasonably delay or deny the assignment or transfer of a franchise. The reasonableness of the City's actions shall be subject to judicial review by a court of appropriate jurisdiction. The proposed transfer or assignment shall be deemed approved if no action is taken by the City within sixty (60) days of the written request for transfer by the grantee.
The grantee may secure financing or an indebtedness by trust, mortgage or other instrument of hypothecation of the franchise, in whole or in part, without requiring the consent of the City. Consent shall not be required to assign a franchise from one business entity to another which is operated or managed by the grantee or any affiliated entity. In addition, so long as the manager and/or general partner of the grantee remains the same, consent shall not be required to transfer the interests of any limited partner of the grantee who has no day-to-day operational control of the grantee or the system.
A grantee may transfer or assign its franchise to an affiliated entity upon thirty (30) days' notice to the City. Consent of the City shall not be required for such an assignment, provided that:
[Ord. No. 1419 §21, 11-4-1997]
The grantee and the City shall at all times comply with all applicable State and Federal laws and the applicable rules and regulations of administrative agencies. If the Federal Communications Commission (FCC) or any other Federal or State governmental body or agency enacts any law or regulation or exercises any paramount jurisdiction over the subject matter of this Chapter or any franchise granted hereunder, the jurisdiction of the City shall cease and no longer exist to the extent such superseding jurisdiction shall pre-empt or preclude the exercise of like jurisdiction by the City. The City and the grantee reserve all rights they each may possess under law, unless expressly waived herein.
[Ord. No. 1419 §22, 11-4-1997]
Except as otherwise provided in this Chapter, the City shall not meet to take any action involving the grantee's franchise unless the City has notified the grantee by certified mail at least thirty (30) days prior to such meeting as to its time, place and purpose. The notice provided for in this Section shall be in addition to, and not in lieu of, any other notice to the grantee provided for in this Chapter. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if mailed by certified mail, return receipt requested, addressed to the grantee's corporate office as follows:
[Ord. No. 1419 §23, 11-4-1997]
Grantee shall utilize existing poles, conduits and other facilities, whenever possible, but may construct or install new, different or additional poles, conduits or other facilities whether on the public way or on privately-owned property with the written approval of the appropriate government authority and, if necessary, the property owner. Such approval shall not be unreasonably withheld by the governmental agency.
All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and appearance and reasonable convenience of property owners who adjoin on any public way and at all times shall be kept and maintained in a safe condition and in good order and repair. The grantee shall at all times employ reasonable care and shall use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the direction of the City or other appropriate governmental authority.
[Ord. No. 1419 §24, 11-4-1997]
Grantee shall have the right to enter and have access to the property and premises of the City or that of any subscriber for purposes of installing cable TV service or recovering and removing grantee's property and equipment when a subscriber's service is terminated and a subscriber refuses to return such equipment to the grantee.
The City shall not permit any person who owns or controls a residential multiple-unit dwelling, trailer park, condominium, apartment complex, subdivision or other property to interfere with the right of any tenant, resident or lawful occupant thereof to receive cable installation, service or maintenance from grantee, except as Federal or State law shall otherwise require.
Upon request by grantee, the City shall promptly exercise any rights it may have to permit or enable grantee to obtain or utilize easements with respect to any residential multiple-unit dwelling, trailer park, condominium, apartment complex, subdivision or other property as required to facilitate grantee's use thereof for purposes of providing system service to the tenants, residents or lawful occupants thereof. In any such proceeding, the restitution to the owner for the amount of space utilized by the system, considering the enhanced value to the premises resulting from the installation of cable television facilities, shall be a one-time charge of one dollar ($1.00) per dwelling unit.
[Ord. No. 1419 §25, 11-4-1997]
The grantee shall neither refuse to hire nor discharge from employment nor discriminate against any person in compensation, terms, conditions or privileges of employment because of age, sex, race, color, creed or national origin. The grantee shall insure that employees are treated without regard to their age, sex, race, color, creed or national origin.
[Ord. No. 1419 §26, 11-4-1997]
The grantee shall have the authority to issue such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable it to exercise its rights and perform its services under this Chapter and the rules of the FCC and to assure uninterrupted service to each and all of its subscribers. Such rules and regulations shall not be deemed to have the force of law.
[Ord. No. 1419 §27, 11-4-1997]
If any Section of this Chapter or the franchise or any portion thereof is held invalid or unconstitutional by any court of competent jurisdiction or administrative agency, such decision shall not affect the validity of the remaining portions of the Chapter or franchise.
[Ord. No. 1419 §28, 11-4-1997]
This Chapter shall become effective upon the date of its adoption by the City. Any failure by the City to follow proper procedures under State or local law in adopting this Chapter or granting a franchise shall not abrogate the rights or obligations of either the grantee or the City under this Chapter. If, following adoption of this Chapter, it is subsequently determined that proper legal procedures have not been followed by the City, it shall be the responsibility of the City to rectify any procedural defects and ratify the terms of this Chapter.