[Ord. No. 1419 §1, 11-4-1997]
A.
This
Chapter shall be known as the Versailles Cable Television Franchise
Ordinance. The purposes of this Chapter are:
1.
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");
2.
To provide
for the payment of a franchise fee to the City for costs associated
with administering and regulating the system; and
3.
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.
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.
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.
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.
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.
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:
Any fees or assessments levied on subscribers or users of the
system which are collected by the grantee for payment to a governmental
entity;
Franchise fees paid by the grantee to the City;
State or local sales or property taxes imposed on the grantee
and paid to a governmental entity; and
Federal copyright fees paid by the grantee to the Copyright
Tribunal in Washington, DC.
Those hours during which most similar businesses in the community
are open to serve customers.
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.
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.
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]
A.
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.
B.
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.
C.
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]
A.
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.
B.
The grantee
will provide the City with thirty (30) days' advance written notice
of any change in rates and charges whenever possible.
C.
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.
D.
Grantee
shall inform each new subscriber of all applicable fees and charges
for providing cable television service.
E.
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.
F.
Grantee
may refuse to provide service to any person because a prior account
with that person remains due and owing.
G.
A grantee
may offer service which requires advance payment of periodic service
charges.
H.
The grantee
shall provide refunds to subscribers in the following cases:
1.
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.
2.
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.
3.
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]
A.
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.
B.
Installation, Outages And Service Calls.
1.
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.
2.
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.
3.
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.
4.
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.
5.
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]
A.
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.
B.
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.
C.
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.
D.
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.
E.
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]
A.
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.
B.
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.
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.
B.
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.
C.
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.
D.
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:
1.
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:
a.
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.
b.
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.
c.
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]
A.
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]
A.
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.
B.
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.
C.
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.
D.
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]
A.
Within
ninety (90) days following the grant of a franchise, the grantee shall
obtain the following insurance policies:
1.
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.
2.
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]
A.
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.
1.
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.
2.
Grantee
shall have thirty (30) days from the date of receipt of such notice
to respond in writing indicating:
a.
Grantee
has cured the alleged violation, providing reasonable documentation
demonstrating that the alleged violation has been cured;
b.
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
c.
Grantee
disagrees with the allegation that a violation has occurred and contests
the violation notice stating the reasons therefor.
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If a violation is cured by grantee within sixty (60) days of
receipt of notice, then no penalty shall be imposed.
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3.
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.
4.
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:
a.
That
the alleged violation has been corrected or is in the process of being
corrected by grantee and that no further action is required;
b.
That
an extension of the time or other appropriate relief should be granted
until the cure for the problem can be completed by grantee;
c.
That
the problem is beyond grantee's direct control and that grantee is
not at fault; or
d.
That
other appropriate action should be taken.
5.
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]
A.
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.
1.
For
failure to meet the following customer service requirements on a per
day/per instance basis, penalties may be assessed as follows:
a.
Failure
to maintain twenty-four (24) hour toll-free or collect-call telephone
access line — seventy-five dollars ($75.00).
b.
Failure
to provide the requisite written information to subscribers —
twenty-five dollars ($25.00).
c.
Failure
to provide refunds as required — twenty-five dollars ($25.00).
2.
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:
a.
Failure
to meet the telephone answering standards — three hundred dollars
($300.00).
b.
Failure
to meet the response to service interruptions standard — three
hundred dollars ($300.00).
c.
Failure
to meet the installation within seven (7) business day standard —
two hundred fifty dollars ($250.00).
d.
Failure
to meet the standard for maintaining scheduled appointments —
two hundred fifty dollars ($250.00).
[Ord. No. 1419 §17, 11-4-1997]
A.
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.
B.
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]
A.
Application Procedures.
1.
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.
2.
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.
3.
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.
4.
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.
B.
Competing Service Providers.
1.
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.
2.
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.
3.
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:
a.
The
positive and/or negative impact of an additional franchise on the
community.
b.
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.
c.
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.
d.
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.
e.
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.
f.
The
experience of the applicant in the erection, maintenance and operation
of a cable television system.
g.
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.
h.
The
disruption of existing cable television service and the potential
that the proposed franchise would adversely affect the residents of
the City.
i.
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.
j.
Such
other information as the City may deem appropriate to be considered
prior to granting any competing or overlapping franchise.
C.
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.
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.
B.
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.
C.
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:
|
Falcon Cablevision
10900 Wilshire Boulevard, 15th Floor
Los Angeles, California 90024
Attn: Howard Gan
|
[Ord. No. 1419 §23, 11-4-1997]
A.
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.
B.
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.
C.
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]
A.
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.
B.
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.
C.
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.
