Editor's Note — Ord. no. 00.20 §§1 — 2,
adopted on June 8, 2000, repealed this entire ch. 630 enacting new
provisions set out herein. Former ch. 630 derived from CC 1985 §§7.5-1
— 7.5-31; ord. no. 90.35, 2-21-1993 and ord. no. 93-49 §1,
10-7-1993.
[R.O. 2006 §630.010; Ord. No. 00.20 §1(Exhibit 1 §1), 6-8-2000]
A.
Title. This Chapter shall be known and may be cited as the
"Cable Communications Regulatory Code".
B.
Purpose. The City finds that further development of cable
systems has the potential to be of great benefit to the City and its
residents and businesses. Cable technology is rapidly changing, and
cable plays an essential role as part of the City's basic infrastructure.
Cable systems extensively make use of scarce and valuable public right-of-ways,
in a manner different from the way in which the general public uses
them, and in a manner reserved primarily for those who provide services
to the public, such as utility companies. A cable company currently
typically faces very limited competition; thus, the grant of a franchise
has the effect of giving the holder extensive economic benefits and
places the holder in a position of public trust. Because of these
facts, the City finds that public convenience, safety, and general
welfare can best be served by establishing regulatory powers vested
in the City or such persons as the City so designates to protect the
public and to ensure that any franchise granted is operated in the
public interest. In light of the foregoing, the following goals, among
others, underlie the provisions set forth in this Chapter:
1.
Cable
service should be available to as many City residents and businesses
as possible and provide the widest possible diversity of information
sources and services to the public.
2.
A cable
system should be capable of accommodating both present and reasonably
foreseeable future cable-related needs of the community.
3.
A cable
system should be constructed and maintained during a franchise term
so that changes in technology may be integrated to the maximum extent
possible into existing system facilities, taking into account all
relevant factors including costs.
4.
A cable
system should grow and develop and be responsive to the needs and
interests of the community.
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The City intends that all provisions set forth in this Chapter
be construed to serve the public interest and the foregoing public
purposes, and that any franchise issued pursuant to this Chapter be
construed to include the foregoing findings and public purposes as
integral parts thereof.
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C.
Existing Franchise And Agreements. To the extent permitted
by law, this Chapter shall apply to franchises and other agreements
in effect at the time of adoption of this Chapter.
[R.O. 2006 §630.020; Ord. No. 00.20 §1(Exhibit 1 §2), 6-8-2000]
Definitions And Usage — General. 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. Section 521 et seq., as amended, and regulations issued pursuant thereto and, if not defined therein, their common and ordinary meaning. For convenience, Federal definitions are set forth in the glossary in Appendix A at the end of this Chapter, which glossary may be revised by the City Attorney to reflect subsequent changes in Federal law without the need for an amendment of this Chapter. 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.
"Board of Aldermen" or "Board" shall mean the Governing Body of the City.
Title 47 of the United States Code, Chapter 5, Subchapter
V-A, 47 U.S.C. Section 521 et seq., as amended from time to time.
The City of Osage Beach, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
The Federal Communications Commission, its designee, or any
successor governmental entity thereto.
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: (a) Any ownership or other right,
title, or interest of more than ten percent (10%) in a franchisee
or its cable system is transferred, sold, assigned, leaded, sublet,
mortgaged or otherwise disposed of or encumbered directly or indirectly,
voluntarily or by foreclosure or other involuntary means, in whole
or in part; or (b) There is any change in or substitution of, or acquisition
or transfer of control of, the franchisee or any person which has
more than a ten percent (10%) interest in a franchisee or has responsibility
for or control over a franchisee's operations or over the system;
or (c) The rights or obligations held by the franchisee under the
franchise are transferred, directly or indirectly, to another person.
"Control" means 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 or award of a new franchise
to another qualified person pursuant to this Chapter.
A person that has been granted a franchise by the City in
accordance with this Chapter.
Any and all cash, credits, property or other consideration
of any kind or nature, received directly or indirectly, by a franchisee
or its affiliates or any person, arising from, attributable to, or
in any way derived from the operation of a cable system to provide
cable services, including the studios and other facilities associated
therewith, within the City. "Gross revenues" include,
by way of illustration and not limitation, monthly fees charged subscribers
for any basic, optional, premium, per-channel, per-program, or other
service; installation, disconnection, reconnection, and change-in-service
fees; leased channel fees; late fees and processing fees; franchise
fees; fees or payments received from programmers for carriage of programming
on the system (which does not include contributions to joint marketing
efforts); revenues from rentals or sales of converters or other equipment;
studio rental and production fees; advertising revenues; revenues
from program guides; and revenues from home shopping and bank-at-home
channels. "Gross revenues" shall not include any
taxes on services furnished by a franchisee or other person which
are imposed directly on any subscriber or user by the United States,
the State of Missouri, the City, or other governmental unit and which
are collected by a franchisee or other person on behalf of said governmental
unit. "Gross revenues" shall not include revenues
of another person to the extent already included in the "gross
revenues" of one (1) person hereunder, or any proceeds from
the sale or exchange of the system. "Gross revenues" shall not include revenues for goods and services which are not
provided over the systems even if such goods and services are ordered
using the system. In the event a person receives revenues for operations
within and without the City of which no specific portion can be attributed
to operations in the City, "gross revenues" with
respect to such revenues shall mean the portion thereof derived by
multiplying such revenues by a fraction, the numerator of which is
the number of subscribers in the City and the denominator of which
is the total number of subscribers in the area generating such revenues.
8:00 A.M. to 5:00 P.M. Monday through Friday.
Those service conditions that are within the control of a
franchisee. Condition that are not within the control of a franchisee
include, but are not limited to, natural disasters, civil disturbances,
power outages in excess of two (2) hours in length, telephone network
outages, and severe or unusual weather conditions. Conditions that
are within the control of a franchisee include, but are not limited
to, special promotions, rate increases, regular peak or seasonal demand
periods, maintenance or upgrade of the cable system, and power outages
of two (2) hours or less in length.
An individual, partnership, limited liability corporation
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 surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway,
easement or similar property in which the City now or hereafter holds
any property interest which, consistent with the purposes for which
it was dedicated, may be used for the purpose of installing and maintaining
a cable system. No reference herein, or in any franchise agreement,
to a "public right-of-way" shall be deemed to be
a representation or guarantee by the City that its interest or other
right to control the use of such property is sufficient to permit
its use for such purposes, and a franchisee shall be deemed to gain
only those rights to use as are properly in the City and as the City
may have the undisputed right and power to give.
Stands for request for proposal.
Any sale, exchange, or barter transaction.
The loss of picture or sound on one (1) or more cable channels.
Any person who legally receives any cable service delivered
over a cable system and the City in its capacity as a recipient of
such service.
A person utilizing part or all of a cable system for purposes
of producing or transmitting video programming or other programming
services as contrasted with the receipt thereof in the capacity of
subscriber.
[R.O. 2006 §630.030; Ord. No. 00.20 §1(Exhibit 1 §3), 6-8-2000]
A.
Grant Of Franchise. The City may grant one (1) or more cable
television franchises containing such provisions as are reasonably
necessary to protect the public interest, and each such franchise
shall be awarded in accordance with and subject to the provisions
of this Chapter. This Chapter may be amended from time to time, and
in no event shall this Chapter be considered a contract between the
City and a franchisee such that the City would be prohibited from
amending any provision hereof; provided, no such amendment shall in
any way impair any contract right or increase obligations of a franchisee
under an outstanding and effective franchise except in the lawful
exercise of the City's Police power.
B.
Franchise Required.
1.
No person
may construct, operate or maintain a cable system or provide cable
service over a cable system within the City without a franchise granted
by the City authorizing such activity. No person may be granted a
franchise without having entered into a franchise agreement with the
City pursuant to this Chapter. For the purpose of this provision,
the operation of part or all of a cable system within the City means
the use or occupancy by facilities of public right-of-ways within
the City whether or not any subscriber within the City is served.
A system shall be deemed as using or occupying public right-of-ways
even though such use or occupancy is solely by reason of use of distribution
facilities furnished by a telephone or other company pursuant to tariff
or contract. A system shall not be deemed as operating within the
City even though service is offered or rendered to one (1) or more
subscribers within the City, if no public right-of-way is used or
occupied. The location within the City of a microwave or similar relay,
interconnection or program origination facility not involving the
use or occupancy of public right-of-ways shall not be deemed operation
within the City. In all respects, franchise agreements shall be issued
so as to provide equal protection under the law and to prevent unlawful
disparate treatment of persons which operate or construct cable systems
or provide cable services over a cable system.
2.
To the extent a common carrier (or any other person) is providing video programming to subscribers using radio communications, such common carrier (or other person) must obtain a franchise as required pursuant to this Chapter but shall not be subject to requirements imposed by the Cable Act through this Chapter. To the extent a common carrier is providing transmission of video programming on a common carrier basis, such common carrier must obtain a franchise as required pursuant to this Chapter but shall not be subject to requirements imposed by the Cable Act through this Chapter (but this Section shall not affect the treatment of a facility of a common carrier as a cable system). To the extent a common carrier (or any other person) is providing video programming by means of an open video system pursuant to certification approved by the FCC, such common carrier (or other person) need not obtain a franchise pursuant to this Chapter but shall be subject to requirements imposed by the Cable Act through this Chapter as permitted by Federal law and shall pay to the City fees on gross revenues for the provision of cable service equal to and in lieu of the franchise fee imposed hereunder on cable operators in accordance with the provisions of this Chapter. To the extent that a common carrier is providing video programming to its subscribers in a manner other than that described above in this Subsection (2), such common carrier must obtain a franchise as required pursuant to this Chapter and shall be subject to requirements imposed by the Cable Act through this Chapter.
C.
Length Of Franchise. No franchise shall initially be granted
for a period of more than twenty (20) years or less than four (4)
years, except that a franchisee may apply for renewal or extension
pursuant to this Chapter.
D.
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 Cable Communications Regulatory Code, 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
services 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 right-of-ways, and the City reserves
the right to reasonably designate where a franchisee's facilities
are to be placed within the public right-of-ways 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.
E.
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 right-of-ways 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.
F.
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.
G.
Operation Of A Cable System Without A Franchise. Any person
who occupies public right-of-ways for the purpose of operating or
constructing a cable system or provides cable service over a cable
system and who does not hold a valid franchise from the City shall
be subject to all requirements of this Chapter, including but not
limited to its provisions regarding construction and technical standards
and franchise fees. In its discretion, the City at any time may by
ordinance: require such person to enter into a franchise agreement
within thirty (30) day of receipt of a written notice to such person
from the City that a franchise agreement is required; require such
person to remove its property and restore the affected area to a condition
satisfactory to the City within such time period; grant a revocable
permit to operate for a period not to exceed two (2) years provided
such period begins on the expiration date of a franchise previously
issued to such person; direct municipal personnel to remove the property
and restore the affected area to a condition satisfactory to the City
and charge the person the costs therefor, including by placing a lien
on the person's property as provided in connection with abating nuisances;
or take any other action it is entitled to take under applicable law.
In no event shall a franchise be created unless it is issued by ordinance
of the City pursuant to this Chapter and subject to a written franchise
agreement.
H.
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.
I.
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.
J.
Exclusive Contracts And Anti-Competitive Acts Prohibited.
1.
No franchisee
or other multi-channel video programming distributor shall enter into
or enforce an exclusive contract for the provision of cable service
or other multi-channel video programming with any person, or demand
the exclusive right to serve a person or location, as a condition
of extending service to that or any other person or location.
2.
No franchisee
or other multi-channel video programming distributor shall engage
in acts that have the purpose or effect of limiting competition for
the provision of cable service or services similar to cable service
in the City, except for such actions as are expressly authorized by
law.
[R.O. 2006 §630.040; Ord. No. 00.20 §1(Exhibit 1 §4), 6-8-2000]
A.
Written Application.
1.
A written
application shall be filed with the City Clerk for: grant of an initial
franchise; renewal of a franchise under 47 U.S.C. Section 546(a) —
(g) or Section 546(h); modification of a franchise agreement; or franchise
transfer. An applicant shall demonstrate in its application compliance
with all requirements of this Chapter and all applicable laws.
2.
To be
acceptable for filing, a signed original of the application shall
be submitted together with ten (10) copies. The application must be
accompanied by the required filing fees, conform to any applicable
request for proposals, and contain all required information. All applications
shall include the names, addresses, and telephone numbers of persons
authorized to act on behalf of the applicant with respect to the application.
3.
All
filed applications shall be made available by the City Clerk for public
inspection. Each filed application shall be reviewed promptly by the
City for completeness.
B.
Application For Grant Of A Franchise, Other Than A Cable Act Renewal
Franchise.
1.
Upon
receipt of an application for a franchise other than a Cable Act renewal
franchise, the Board of Aldermen may commence a proceeding to identify
the future cable-related needs and interests of the community. Upon
completion of that proceeding, or after receipt of the application
if no such proceeding is commenced, the Board of Aldermen shall either
evaluate the application or issue an RFP, which shall be mailed to
the applicant and made reasonably available to any other interested
person. The procedures, instructions and requirements set forth in
an RFP shall be followed by each applicant as if set forth and required
herein. The City may seek additional information from any applicant
and establish deadlines for the submission of such information. If
the City issues an RFP, it shall evaluate all timely responses.
2.
In evaluating
an application for a franchise including a response to an RFP, the
City shall consider, among other things, the following factors:
a.
The
extent to which the applicant substantially complied with the applicable
law and the material terms of any franchises in other communities.
b.
Whether
the quality of the applicant's service under any franchises in other
communities, including signal quality, response to customer complaints,
billing practices, and the like, was reasonable in light of the needs
and interests of the communities served.
c.
Whether
there is adequate assurance that the applicant has the financial,
technical, and legal qualifications to provide cable service in the
City.
d.
Whether
the application satisfies any minimum requirements established by
the City and is otherwise reasonably likely to meet the future cable-related
needs and interests of the community, taking into account the cost
of meeting such needs and interests.
e.
Whether
there is adequate assurance the applicant will provide suitable public,
educational, and governmental access facilities.
f.
Whether
issuance of a franchise is warranted and in the public interest considering
the immediate and future effect on the public right-of-ways that would
be used by the cable system, including the extent to which installation
or maintenance as planned would require replacement of property or
involve disruption of property, public services, or use of the public
right-of-ways.
g.
Whether
the applicant or an affiliate of the applicant owns or controls any
other cable system in the City, or whether grant of the application
may eliminate or reduce competition in the delivery of cable service
in the City.
3.
If the
Board of Aldermen finds that it is in the public interest to issue
a franchise considering the factors set forth above, the City shall
prepare a final written franchise agreement under this Chapter that
incorporates, as appropriate, the commitments made by the applicant
and establish a deadline for the applicant to sign it and submit it
for approval. If the applicant signs the franchise agreement and timely
submits it for approval, the City shall issue a franchise by ordinance
adopted no less than thirty (30) days after the filing of the original
application.
4.
If the
Board of Aldermen denies a franchise, it will issue a written decision
explaining why the franchise was denied.
5.
Prior
to deciding whether or not to issue a franchise, the Board of Aldermen
shall hold a public hearing; however, the City may reject without
hearing any application that is incomplete or fails to respond fully
to an RFP.
6.
This
Chapter is not intended and shall not be interpreted to grant standing
to challenge the issuance of a franchise to another person, or to
limit such standing.
C.
Application For Grant Of A Cable Act Franchise Renewal. Applications for franchise renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. Section 546. If neither a franchisee nor the City activates in a timely manner, or can activate, the renewal process set forth in 47 U.S.C. Section 546(a) — (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. Section 546(h), the provisions of Subsection (B) of this Section shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:
1.
a.
If
the provisions of 47 U.S.C. Section 546(a) — (g) are properly
invoked, the Board of Aldermen shall, in accordance with the time
limits of the Cable Act, commence and complete a proceeding to review
the applicant's performance under the franchise during the then current
franchise term and to identify future cable-related community needs
and interests. Upon completion of the proceeding, the Board of Aldermen
may issue a RFP. The Board of Aldermen, or its designee, shall establish
deadlines and procedures for responding to the RFP, may seek additional
information from the applicant, and shall establish deadlines for
the submission of such additional information. Alternatively, an applicant
can submit a proposal for renewal on its own initiative.
b.
Following
receipt of renewal proposals (and such additional information as may
be provided in response to requests), the Board of Aldermen will provide
prompt public notice of such proposals and thereafter either determine
that the franchise should be renewed or make a preliminary assessment
that the franchise should not be renewed. This determination shall
be made in accordance with the time limits established by the Cable
Act, including sufficient time to comply with the following procedures.
c.
If
the Board of Aldermen preliminarily determines that the franchise
should not be renewed, which determination can be made by resolution,
and the applicant that submitted the renewal proposal notifies the
City Clerk in writing within twenty (20) days after receipt of the
preliminary determination that it wishes to pursue any rights to an
administrative proceeding it has under the Cable Act, then, if required,
the Board of Aldermen shall commence an administrative proceeding
after providing prompt public notice thereof, in accordance with the
Cable Act. The City may also commence such a proceeding on its own
initiative if it so chooses.
d.
If
the Board of Aldermen decides to grant renewal, which decision shall
be made by resolution, the City shall prepare a final written franchise
agreement that incorporates, as appropriate, the commitments made
by the applicant in the renewal proposal and establish a deadline
for the applicant to sign it and submit it for approval. If the applicant
signs the franchise agreement and timely submits it for approval,
the City shall issue a franchise by ordinance. If the franchise agreement
is not so accepted and approved within the time limits established
by 47 U.S.C. Section 546(c)(1) and the City, renewal shall thereupon
be deemed preliminarily denied, and if the applicant notifies the
City Clerk in writing within twenty (20) days after the expiration
of the time limit established by 47 U.S.C. Section 546(c)(1) that
it wishes to pursue any rights to an administrative proceeding it
has under the Cable Act, then, if required, the Board of Aldermen
shall commence an administrative proceeding after providing prompt
public notice thereof, in accordance with the Cable Act. The City
may also commence such a proceeding on its own initiative if it so
chooses.
2.
If an
administrative proceeding is commenced pursuant to 47 U.S.C. Section
546(c), the applicant's renewal proposal shall be evaluated considering
such matters as may be considered consistent with Federal law. The
following procedures shall apply:
a.
The
Board of Aldermen shall, by resolution, appoint an administrative
hearing officer or officers (referred to hereafter as "hearing
officer"). The Board of Aldermen may appoint itself or one
(1) or more of its members as hearing officer or any other qualified
person.
b.
The
hearing officer shall establish a schedule for proceeding which allows
for written discovery (requests for admissions, production of documents
and interrogatory responses), production of evidence, and subpoenaing
and cross-examination of witnesses. Depositions shall not be permitted
unless the party requesting the deposition shows that written discovery
and hearing subpoenas will not provide it an adequate opportunity
to require the production of evidence necessary to present its case.
The hearing officer shall have the authority to require the production
of evidence as the interests of justice may require, including to
require the production of evidence by the applicant that submitted
the renewal proposal and any affiliate of such applicant. The hearing
officer shall not prohibit discovery on the ground that evidence sought
is proprietary or involves business secrets, but rather shall issue
protective orders which allow reasonable and necessary discovery without
making such information available to competitors. Any order of the
hearing officer may be enforced by imposing appropriate sanctions
in the administrative hearing or by action of the Board of Aldermen.
c.
The
hearing officer may conduct a prehearing conference and establish
appropriate prehearing orders. The City and the applicant shall be
the only parties. The City may have special counsel to represent its
interests at the hearing so that the City Attorney may advise the
Board of Aldermen as it makes its decision.
d.
The
hearing officer may require the City and the applicant to submit prepared
written testimony prior to the hearing. Unless the parties agree otherwise,
the applicant shall present evidence first, the City shall present
evidence second, and the applicant shall be allowed the opportunity
to present rebuttal evidence. Any reports or the transcript or summary
of any proceedings conducted pursuant to 47 U.S.C. Section 546(a)
shall for purposes of the administrative hearing be regarded no differently
than any other evidence. The City and the applicant must be afforded
full procedural protection regarding evidence related to these proceedings,
including the right to refute any evidence introduced in these proceedings
or sought to be introduced by the other party. Both shall have the
opportunity to submit additional evidence related to issues raised
in the proceeding conducted pursuant to 47 U.S.C. Section 546(a).
e.
There
shall be a transcribed proceeding during which each party will be
allowed to present testimony (live, or written if so required) and
cross-examine the witnesses of the other party.
f.
Following
completion of any hearing, the hearing officer shall require the parties
to submit proposed findings of fact with respect to the matters that
the Board of Aldermen is entitled to consider in determining whether
renewal ought to be granted. Based on the record of the hearing, the
hearing officer shall then prepare written findings with respect to
those matters and submit those findings, including a decision and
the reasons therefor, to the Board of Aldermen and to the parties
(unless the hearing officer is the Board of Aldermen, in which case
the written findings shall constitute the final decision of the City).
g.
If
the hearing officer is not the Board of Aldermen, the parties shall
have thirty (30) days from the date the findings are submitted to
the Board of Aldermen to file exceptions to those findings. The Board
of Aldermen shall thereafter issue a written decision granting or
denying the application for renewal, consistent with the requirements
of the Cable Act, based on the record of such proceeding, stating
the reason for the decision. A copy of the final decision of the Board
of Aldermen shall be provided to the parties.
h.
The
proceeding shall be conducted with due speed. Any decision to renew
a franchise shall be made by ordinance enacted no less than thirty
(30) days after the filing of the application and subsequent to preparation
of a written franchise agreement consistent with the decision by the
City and signature thereof by the applicant.
i.
In
conducting the proceeding, and except as inconsistent with the foregoing,
the hearing officer will follow the Missouri Administrative Procedures
Act, as amended. The hearing officer may request that the Board of
Aldermen adopt additional reasonable and necessary procedures and
requirements by resolution.
3.
This Section does not prohibit any franchisee from submitting or the City from considering an informal renewal application pursuant to 47 U.S.C. Section 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. Section 546(h). If such an informal renewal application is granted, including during the course of formal renewal proceedings, then the steps specified in Subsections (C)(1) and (C)(2) of this Section need not be taken, notwithstanding the provisions of those Subsections. However, the City will provide the public with adequate notice before making a decision on such an application, and will make any decision to renew by ordinance enacted no less than twenty (20) days after the filing of the application, and subsequent to the preparation of a written franchise agreement by the City and signature thereof by the applicant. Unless otherwise directed by the City, an informal renewal application shall contain the information required under Subsection (D) of this Section.
4.
The
provisions of this Chapter shall be read and applied so that they
are consistent with Section 626 of the Cable Act, 47 U.S.C. Section
546, as amended.
D.
Contents Of Franchise And Renewal Applications. An RFP for
the grant of a franchise, including for a franchise renewal, shall
require and any application submitted shall contain, at a minimum,
the following information:
1.
Name
and address of the applicant and identification of the ownership and
control of the applicant, including: the names and addresses of all
persons with more than a ten percent (10%) ownership interest in the
applicant and all persons in control of the applicant and/or the operations
or system of the applicant; and any other business affiliation and
cable system ownership interest of each named person.
2.
A demonstration
of the applicant's technical ability to construct and/or operate the
proposed or existing cable system, including identification of key
personnel and their cable television experience.
3.
A demonstration
of the applicant's legal qualifications to construct and/or operate
the proposed or existing cable system including, but not limited to,
a demonstration that the applicant meets the following criteria:
a.
The
applicant has not had any cable television franchise validly revoked
by any franchising authority within three (3) years preceding the
submission of the application. If any revocation action is pending,
it must be identified and explained.
b.
The
applicant has the necessary authority under Missouri law to operate
a cable system.
c.
The
applicant has authority to hold the franchise as a matter of Federal
law. An applicant must have, or show that it is qualified to obtain,
any necessary Federal franchises or waivers required to operate the
proposed or existing cable system.
d.
The
applicant and its key personnel have not, at any time during the ten
(10) years preceding the submission of the application, been convicted
of any criminal act or omission or civil violation of such character
that the applicant cannot be relied upon to comply substantially with
its lawful obligations under applicable law, including obligations
under consumer protection laws and laws prohibiting anti-competitive
acts, fraud, racketeering, or other similar conduct. This criteria
can be met by submission of a statement that there are no convictions
or by submission of a list reflecting that all convictions are of
a minor nature.
e.
The
applicant has not filed materially misleading information in its application
or intentionally withheld information that the applicant lawfully
is required to provide.
f.
No
elected official or employee of the City holds a controlling interest
in the applicant or an affiliate of the applicant, or has received
any promise of such an interest, or has received any gratuity, commission,
percentage, brokerage or contingency fee or other compensation for
issuance or renewal of a franchise, or promise thereof.
4.
A statement
prepared by a certified public accountant regarding the applicant's
financial ability to complete any proposed construction and to operate
the proposed or existing cable system.
5.
A description
of the applicant's prior experience in cable system ownership, construction
and operation, and identification of communities in which the applicant
or any of its affiliates have, or have had, a cable franchise or franchise
or any interest therein.
6.
Identification
of the area of the City to be served by the proposed cable system,
including a description of the proposed franchise area's boundaries.
7.
A detailed
description of existing and any proposed physical facilities, including
channel capacity, technical design, performance characteristics, headend,
and access facilities.
8.
A description
of any promised construction including an estimate of plant mileage
and its location; the proposed construction schedule.
9.
A description,
where appropriate, of how services will be converted from existing
facilities to new facilities.
10.
A
demonstration of how the applicant will reasonably meet the future
cable-related needs and interests of the community, including descriptions
of how the applicant will meet or disagrees with the needs described
in any recent community needs assessment conducted by or for the City.
11.
A
description of public, educational and governmental access facilities
to be provided.
12.
If
the applicant proposes to provide cable service to an area already
served by an existing franchisee, the identification of the area where
the overbuild would occur, the potential subscriber density in the
area that could encompass the overbuild, and the ability of the public
right-of-ways and other property that would be used by the applicant
to accommodate an additional system.
13.
Any
other information as may be reasonably necessary to demonstrate compliance
with the requirements of this Chapter.
14.
Information
that the City may reasonably request of the applicant that is relevant
to the City's consideration of the application.
15.
An
affidavit or declaration of the applicant or authorized representative
certifying the truth, accuracy and completeness of the information
in the application, acknowledging the enforceability of application
commitments upon acceptance through the granting of a franchise, and
certifying that the application is consistent with all Federal, State,
and local laws.
16.
Applicants
for renewals may refer to prior applications as long as they submit
such updated information as required to make the application current.
E.
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
Board of Aldermen will conduct its review and makes its decision in
conformity with that Statute. If the request for modification is not
subject to 47 U.S.C. Section 545, the Board of Aldermen will conduct
its review and make its decision by ordinance enacted no less than
twenty (20) days after the application is filed, subsequent to preparation
of a modified written franchise agreement by the City and signature
thereof by the applicant.
3.
An extension
of a franchise term by less than four (4) years shall constitute a
modification. An extension of a franchise term by four (4) years or
more shall be processed through formal or informal renewal procedures.
F.
Franchise Transfers.
1.
City approval required. No franchise transfer shall occur
without prior written application to and written approval of the Board
of Aldermen by ordinance enacted after a public hearing, and only
then upon such terms and conditions as the Board of Aldermen 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 Board of Aldermen shall be considered
to impair the City's assurance of due performance. The granting of
approval for a franchise transfer in one 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;
(3)
A description of any business relationships or transactions of any
kind, past, present or anticipate, between the franchisee, or its
owners or affiliates, and the transferee, or its owners or affiliates,
other than the proposed transaction;
(4)
Any contracts, financing documents, or other documents that relate
to the proposed transaction and all documents, schedules, exhibits
or the like referred to therein;
(5)
A description of the sources and amounts of the funds to be used
in the proposed transaction, indicting 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 term 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;
(6)
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;
(7)
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 Board of Aldermen and its agents may inquire into the
qualifications of the prospective transferee and such other matter
as the Board of Aldermen 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 Board of Aldermen 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 Board of Aldermen 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 it 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.
c.
Any
purported franchise transfer made without the Board of Aldermen prior
written approval shall be void, and shall make a franchise subject
to revocation at the Board of Aldermen'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, including renewal, unless the Board of Aldermen approves a modification of the franchise agreement pursuant to Subsection (E) of 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 Board
of Aldermen 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.
G.
Filing Fees And Deposits. To be acceptable for filing, an application under this Section 630.040 shall be accompanied by a filing fee in the following amounts to cover the City's internal administrative costs incidental to the franchising process:
H.
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.
[R.O. 2006 §630.050; Ord. No. 00.20 §1(Exhibit 1 §5), 6-8-2000]
A.
System Construction Schedule. Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system. Failure on the part of a franchisee to commence and diligently pursue such requirements and complete the matters set forth in its franchise agreement or to comply with the system design and construction plan submitted to the City, including by providing the equipment specified (or its equivalent) and by following generally accepted installation practices (except insofar as those plans or practices, if carried out, would result in construction of a system which could not meet requirements of Federal, State or local law; and except for such minor modifications as are typical in the industry), shall be grounds for revocation of its franchise under and pursuant to the terms of Section 630.120(E); provided however, that the Board of Aldermen in its discretion may extend the time for the completion of construction and installation for additional periods by resolution in the event a franchisee, acting in good faith, experiences delays by reason of circumstances beyond its control and requests such an extension in writing. A franchisee's failure to comply with provisions of the construction plan approved by the Board of Aldermen shall also be grounds for imposition of penalties pursuant to Section 630.120(H).
B.
Construction Procedures.
1.
A franchisee
shall construct, operate and maintain the cable system 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.
The
system, and all parts thereof, shall be subject to periodic inspection
by the City.
3.
No construction,
reconstruction or relocation of the system or any part thereof within
the public right-of-ways shall be commenced until written permits
have been obtained from the proper City Officials, to the extent such
permits are required by the City. In any permit so issued, the City
may impose such conditions and regulations as are reasonably necessary
for the purpose of protecting any structures or facilities in the
public right-of-ways, and for the proper restoration of such public
right-of-ways and structures and facilities, and for the protection
of the public and the continuity of pedestrian and vehicular traffic.
This provision does not apply to maintenance and repair of existing
facilities.
4.
The
Board of Aldermen may by resolution or ordinance, from time to time,
issue such reasonable rules and regulations concerning the construction,
operation and maintenance of the system as are consistent with the
provisions of this Chapter and franchises issued pursuant to this
Chapter.
C.
Construction Standards.
1.
The
construction, operation, maintenance and repair of a cable system
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 cable system 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 system 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 over a franchise term.
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.
All
electronic equipment shall be of good and durable quality.
4.
Without
limiting the foregoing, antennae and their supporting structures (towers)
shall be designed in accordance with the Uniform Building Code and
Electronics Industry Association RS-22A 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.
5.
Without
limiting the foregoing, all of a franchisee's plant and equipment
including, but not limited to, the antennae site, headend 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
right-of-ways or legal rights of any property owner including the
City or unnecessarily hinder or obstruct pedestrian or vehicular traffic.
6.
All
safety practices required by law shall be used during construction,
maintenance and repair of a cable system. A franchisee 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.
7.
A franchisee
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 right-of-ways.
8.
Any
and all public right-of-ways, public property or private property
disturbed or damaged during the construction, repair, replacement,
relocation, operation, maintenance or construction of a system shall
be repaired or replaced by the franchisee within a reasonable time
specified by the City.
9.
A franchisee
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 cable system, 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 and a franchisee shall not be entitled
to any compensation therefor. No location of any pole or wire-holding
structure of a franchisee shall be a vested interest.
10.
If
any action under the preceding paragraph is reasonably required to
accommodate the construction, operation or repair of the facilities
of another person that is authorized to use the public right-of-ways,
a franchisee shall, after thirty (30) days' advance written notice,
take action to effect the necessary changes requested. The franchisee
shall be reimbursed by such other person for costs reasonably incurred
in taking such action. The Board of Aldermen 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 right-of-ways if the parties are unable to
do so themselves, and if the matter is not governed by a valid contract
between the parties.
11.
In
the event of an emergency, or where a cable system creates or is contributing
to an imminent danger to health, safety or property, the City may
remove, relay or relocate the pertinent parts of that cable system
without prior notice. No charge shall be made by franchisee against
the City for restoration and repair.
12.
A
franchisee 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 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 shall be given
not less than forty-eight (48) hours' advance notice to arrange for
such temporary wire changes unless the Board of Aldermen has declared
an emergency.
13.
A
franchisee 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,
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.
14.
A
franchisee shall use, with the owner's permission, existing underground
conduits or overhead utility facilities whenever feasible and may
not erect poles in public right-of-ways without the express written
permission of the Board of Aldermen, which permission shall not be
unreasonably withheld. Copies of agreements for use of conduits or
other facilities shall be filed with the City Clerk as required by
a franchise agreement or upon City request.
15.
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 cables shall be similarly moved and the cost of movement
of its cable shall be solely the obligation of the franchisee. In
cases of new construction or property development where utilities
are to be placed underground, on request of franchisee the developer
or property owner shall give a franchisee reasonable notice of the
particular date on which open trenching will be available to franchisee
for installation of conduit, pedestals and/or vaults, and laterals
to be provided at the franchisee's expense. The franchisee 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 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.
16.
The
City shall have the right to install and maintain free of charge upon
any poles or within any conduit owned by a franchisee any wire and
pole fixtures that do not unreasonably interfere with the cable system
operations of the franchisee.
17.
Prior
to construction or rebuild of a cable system, a franchisee shall first
submit to the Board of Aldermen for approval a concise description
of the cable system proposed to be erected or installed, including
engineering drawings, if required by the Board of Aldermen, together
with a map and plans indicating the proposed location of all such
facilities and obtain written approval therefor from the Board of
Aldermen, which approval shall not be unreasonably withheld.
18.
Any
contractor or subcontractor used for work or construction, installation,
operation, maintenance or repair of system equipment 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 would have under the franchise
agreement and applicable laws if the work were performed by the franchisee.
The franchisee must ensure that contractors, subcontractors and all
employees who will perform work for it are trained and experienced.
The franchisee shall be responsible for ensuring that the work of
contractors and subcontractors is performed consistent with the franchise
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.
19.
Upon
failure of a franchisee to commence, pursue or complete any work required
by law or by the provisions of this Chapter to be done in any street,
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, cause such work to be done and the franchisee shall
pay to the City the cost thereof in the itemized amounts reported
by the City to franchisee within thirty (30) days after receipt of
such itemized report.
20.
The
franchisee shall make no paving cuts or curb cuts except after written
permission has been given by the City, which permission shall not
unreasonably be withheld.
21.
The
franchisee shall install in conduit all cable passing under any major
roadway.
D.
Area Served. A franchisee shall build and maintain its system so that within a reasonable period of time, as established by the franchise, it is able to provide service to all households desiring service located within the franchise area without any construction charges (other than standard connection charges and drop charges as indicated in Section 630.050(E)(2). A franchisee must build and maintain its system so that it can extend service to households desiring service located outside the franchise area in accordance with Section 630.050(E(1) — (4). Connections to commercial customers shall be governed by Section 630.050(E)(5).
E.
Line Extension Requirements.
1.
a.
For areas within the City limits but outside the franchise area, including areas annexed after the effective date of its franchise, a franchisee shall upon request of the Board of Aldermen extend its trunk and distribution system to serve households desiring service without any construction charge (other than standard connection charges and drop charges as indicated in Section 630.050(E)(2), unless the franchisee demonstrates to the Board of Aldermen's satisfaction evidenced by written decision that circumstances justify a specific charge, where: the new subscriber requesting service is located within five hundred (500) feet from the termination of the cable system, or the number of potential subscribers to be passed by such extension is equal to or greater than five (5) potential households per quarter mile measured from any point on the system.
b.
In
the event that the requirements set forth in the foregoing paragraph
(a) are not met, the franchisee shall on request of the Board of Aldermen
extend its cable system based upon the following cost-sharing formula.
The franchisee shall contribute an amount equal to the construction
costs per mile multiplied by the length of the extension in miles,
multiplied by a fraction where the numerator equals the number of
potential households per quarter mile at the time of the request and
the denominator equals five (5). Households requesting service as
of the completion of construction can be required to bear the remainder
of the total construction costs on a pro rata basis.
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The "construction costs" are defined as the
actual turnkey cost to construct the entire extension including lines,
materials, electronics, pole make-ready charges, and labor, but not
the cost of drops except as provided below. If the franchisee proposes
to require a household requesting extension to make a contribution
in aid of extension, it must (1) notify the Board of Aldermen in advance;
(2) send the Board of Aldermen a copy of the invoice showing the amount
actually charged each household requesting extension; and (3) within
thirty (30) days of completion of the extension, furnish proof of
the total cost of the extension and make any appropriate refunds if
the total cost is less than the amounts charged in advance of construction.
At the end of each calendar year, the franchisee must calculate the
amount any contributing person would have paid based on the number
of persons served at that time and pay back the difference between
the amount actually collected from that person and the amount which
would then be owed. The franchisee shall report such calculations
and refunds to the City Clerk by the end of January of the following
year.
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2.
Installation of drops. Except as Federal rate regulations
may otherwise require, the franchisee shall not assess any additional
cost for service drops of one hundred fifty (150) feet or less unless
the franchisee demonstrates to the Board of Aldermen's satisfaction,
evidenced by written decision, that circumstances justify a specific
charge. Where a drop exceeds one hundred fifty (150) feet in length,
a franchisee may charge the subscriber for the difference between
franchisee's actual costs associated with installing a one hundred
fifty (150) foot drop and the franchisee's actual cost of installing
the longer drop, provided that drop length shall be the shorter of:
(1) the actual length of installed drop; or (2) the shortest practicable
distance to the point where the franchisee would be required to extend
its distribution system.
3.
Location of drops. Except as Federal rate regulations may
otherwise require, in any area where a franchisee would be entitled
to install a drop above ground, the franchisee will provide the subscriber
the option to have the drop installed underground, but may charge
the subscriber the difference between the actual cost of the above-ground
installation and the actual cost of the underground installation.
4.
Time for extension. A franchisee must extend service to
any person who requests it: (1) within seven (7) days of the request
within the franchise area or where service can be provided by activating
or installing a drop within one hundred fifty (150) feet of the existing
distribution system; (2) within one hundred twenty (120) days of the
request for service outside the franchise area where an extension
of one-half (½) mile or less (but more than one hundred fifty
(150) feet) is required; or (3) within six (6) months for service
outside the franchise area where an extension of one-half (½)
mile or more is required.
5.
Because
existing conditions can vary dramatically, franchisee may in its discretion
require commercial customers to pay all reasonable costs of connection
(including time and materials) in excess of the average cost of connection
for residential services.
F.
System Tests And Inspections.
1.
Tests. A franchisee shall perform the following tests to
demonstrate compliance with the requirements of the franchise and
other performance standards established by Federal law. All tests
shall be conducted in accordance with Federal rules and in accordance
with the most recent edition of NCTA's "Recommended Practices for
Measurements on Cable Television Systems" or, if no recent edition
exists, such other appropriate manual as the parties may designate.
a.
Preconstruction quality control on cable and equipment. A
franchisee shall perform preconstruction quality tests on system components.
In case of passive components, this will include testing a significant
sample of devices to verify compliance with manufacturer's specifications.
(1)
All trunk and distribution cable shall be sweep-tested on the reels
to verify compliance with manufacturer's specifications for frequency
response and loss.
(2)
No component shall be used in the system which fails to meet manufacturer's
specifications. A franchisee shall maintain in State of Missouri records
of all preconstruction tests, which the City may inspect during normal
business hours on reasonable notice.
b.
Acceptance tests. A franchisee shall perform acceptance
tests prior to subscriber connection. The tests shall demonstrate
that the system components are operating as expected. The test results
shall be made available for review by the City in the State of Missouri.
The franchisee shall have the obligation, without further notice from
City, to take corrective action if any system components are not operating
as expected.
c.
Continuing tests.
(1)
The franchisee shall select locations at the extremities of the system
to install equipment to establish sufficient permanent test points
in accordance with Federal law and sound engineering practices. The
franchisee shall perform proof of performance tests at these locations
at least once every six (6) months through the life of the franchise
except as Federal law otherwise limits its obligation, and at other
times and points where complaints indicate tests are warranted. The
tests shall demonstrate system compliance with technical specifications
established pursuant to franchise or other applicable law. If the
City requests to witness the tests, it shall be notified in writing
delivered to the City Clerk at least forty-eight (48) hours in advance
of any testing.
(2)
A written report of all test results shall be available for review
by the City in the State of Missouri. If the location fails to meet
performance specifications, the franchisee, without requirement of
additional notice or request from City, shall take corrective action
and retest the location. The City shall have the option of witnessing
such follow-up tests and shall be notified in writing delivered to
the City Clerk at least forty-eight (48) hours in advance of any such
follow-up testing.
(3)
At any time after commencement of service to subscribers the City
may require additional tests, full or partial repeat tests, different
test procedures, or tests involving a specific subscriber's terminal.
Requests for such additional tests will be made on the basis of complaints
received or other evidence indicating an unresolved controversy or
significant non-compliance, and such tests will be limited to the
particular matter in controversy. The City may conduct such tests
independently on three (3) days' advance notice to franchisee. The
City will endeavor to so arrange its requests for such special tests
so as to minimize hardship or inconvenience to the franchisee and
the subscriber(s).
d.
All
reports of test results shall include executive summaries.
e.
Test
procedures used in verification of the performance criteria set forth
herein, if not as set forth in Section 76.609, Subpart K of the FCC
Rules and Regulations, shall be in accordance with good engineering
practice and shall be fully described in an attachment to the annual
certificate filed with the City.
f.
To
the extent that the report of measurements as required above may be
combined with any reports of measurements required by the FCC or other
regulatory agencies, the City shall accept such combined reports,
provided that all standards and measurements herein or hereafter established
by the City are satisfied.
2.
Inspections. The City may conduct inspections of the system,
including to assess compliance with the construction and installation
practices manuals and design plans. The franchisee shall be notified
in writing of any violations found during the course of inspections.
The franchisee must bring violations into compliance within thirty
(30) days of the date notice of violation is given and must submit
a report to the City Clerk describing the steps taken to bring itself
into compliance. Inspection does not relieve the franchisee of its
obligation to build in compliance with all provisions of the franchise.
G.
Use Of Public Property.
1.
Should
the grades or boundaries of the public right-of-ways which the franchisee
is authorized to use and occupy be changed at any time during the
term of the franchise granted, the franchisee 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 right-of-ways required on account of the construction of
the system in the public right-of-ways shall be made at the sole cost
and expense of the franchisee. During any work of constructing, operating
or maintaining of the system, the franchisee 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 pursuant to this Section shall be done in such reasonable
manner prescribed by the City or other officials having jurisdiction
thereover.
H.
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.
I.
Publicizing Proposed Construction Work. Unless not possible
due to emergency circumstances, franchisee 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. In addition, unless not possible due
to emergency circumstances, before entering onto any person's property,
a franchisee shall contact the property owner or occupant at least
one (1) day in advance. If a franchisee must enter a private building,
it must have permission of the owner or occupant.
J.
System Maintenance.
1.
Interruptions to be minimized. A franchisee shall schedule
maintenance so that activities likely to result in an interruption
of service are performed during periods of minimum subscriber use
of the system.
2.
Maintenance practices. In addition to its other obligations,
a franchisee shall (a) use replacement components of good and durable
quality, with characteristics better or equal to replaced equipment;
and (b) follow the more stringent of maintenance standards specified
in the franchise agreement, cable televisions industry maintenance
standards or franchisee's maintenance standards.
K.
Continuity Of Service.
1.
It shall
be the right of all persons in a franchisee's franchise area to receive
all available services from the franchisee as long as their financial
and other obligations to the franchisee are satisfied, and subject
to reasonable construction standards and schedules, and subject to
availability of legal access to the location.
2.
A franchisee
shall make every reasonable effort to provide all subscribers with
continuous uninterrupted service. At the City's request, a franchisee
shall operate its system for a temporary period under a revocable
permit granted expressly by ordinance or tacitly following the termination
of its franchise or franchise transfer as necessary to maintain service
to subscribers and shall cooperate with the City to assure an orderly
transition from it to another franchisee or system operator (the "transition
period"). The transition period shall be no longer than the reasonable
period required for another franchisee to commence service and shall
not be longer than two (2) years. During the transition period, the
franchisee shall continue to be obligated to comply with the terms
and conditions of its franchise agreement and applicable laws and
regulations and will thereupon continue to receive operating revenues
during such transition period.
[R.O. 2006 §630.060; Ord. No. 00.20 §1(Exhibit 1 §6), 6-8-2000]
A.
Compliance With Franchise Agreement. In addition to satisfying such requirements as may be established through the application process and incorporated in its franchise agreement including, but not limited to, those pertaining to public, educational and governmental access facilities, every franchisee shall comply with the conditions set forth in this Section 630.060, except as prohibited by Federal law.
B.
Full Service To Municipal Buildings. A franchisee shall,
on request of the City, install, at no charge, at least one (1) service
outlet at all City buildings and all primary and secondary education
public and private schools within the franchise area and shall install
and charge only its reasonable costs for any additional service outlets
requested for such locations, so long as such additional installations
will not interfere with the quality and operation of the franchisee's
system or signal thereon, and the quality and manner of installation
of such additional outlets shall have been approved by the franchisee
(which approval shall not be unreasonably withheld) and shall comply
with all City, State and Federal laws and regulations. The franchisee
shall provide basic cable service and expanded basic cable service
to all outlets in such buildings free of charge. A franchise may specify
other requirements regarding the availability of facilities for municipal
use.
C.
Cable Channels For Commercial Use, Local Commercial Television Signals
And Non-Commercial Educational Television. A franchisee shall designate channel capacity for commercial and
non-commercial use by persons unaffiliated with the franchisee as
required by Federal law, consistent with the principle of fairness
and equal accessibility to all persons and the City to the extent
they have a legitimate use for such capacity.
D.
Technical Standards.
1.
Any
cable system within the City shall meet or exceed the technical standards
set forth in 47 C.F.R. Section 76.601 et seq., and any other applicable
Federal technical standards, including any such reasonable standards
as hereafter may be amended or adopted by the Board of Aldermen in
a manner consistent with Federal law.
2.
A franchisee
shall use equipment generally used in high-quality, reliable, modern
systems of similar design including, but not limited to, back-up power
supplies at the fiber nodes and head-ends capable of providing power
to the system for a minimum of two (2) hours in the event of an electrical
outage, plus adequate portable generators to cover longer outages.
The obligation to provide back-up power supplies requires the franchisee
to install equipment that will: (a) cut in automatically on failure
of commercial utility AC power, (b) revert automatically to commercial
power when it is restored, and (c) prevent the standby power source
from powering a "dead" utility line. In addition, the design and construction
of a system shall include modulators, antennae, amplifiers, and other
electronics that permit and are capable of passing through the signal
received at the head-end with minimal alteration or deterioration.
E.
Interconnection.
1.
A franchisee
shall design its system so that it may be interconnected with any
or all other systems or similar communications systems in the area.
Interconnection of systems may be made by direct cable connection,
microwave link, satellite or other appropriate methods.
2.
Upon
receiving the directive of the Board of Aldermen to interconnect,
the franchisee shall immediately initiate negotiations with the other
affected system or systems so that costs may be shared proportionately
for both construction and operation of the interconnection link.
3.
The
Board of Aldermen may in writing grant reasonable extensions of time
to interconnect or rescind its request to interconnect upon its own
initiative or upon petition by the franchisee to the Board of Aldermen.
The Board of Aldermen shall rescind the request if it finds that the
franchisee has negotiated in good faith and the cost of interconnection
would cause an unreasonable increase in subscriber rates.
4.
No interconnection
shall take place without prior written approval of the Board of Aldermen.
A franchisee seeking approval for interconnection shall demonstrate
that all signals to be interconnected will comply with FCC technical
standards for all classes of signals and will result in no more than
a low level of distortion.
5.
The
franchisee shall cooperate with any interconnection corporation, regional
interconnection authority or State or Federal regulatory agency which
may be established for the purpose of regulating, facilitating, financing
or otherwise providing for the interconnection of communications systems
beyond the boundaries of the City.
F.
Integration Of Advancements In Technology. A franchise agreement
may require a franchisee to periodically upgrade its cable system
to integrate advancements in technology as may be necessary to meet
the needs and interests of the community in light of the costs thereof
and/or to submit periodic reports on cable technology and competition
to the City Clerk.
G.
System Design Review Process. In addition to any requirements
included in a franchise agreement, at least sixty (60) days prior
to the date construction of any rebuild is scheduled to commence,
the franchisee shall provide the City Clerk with notice that a detailed
system design and construction plan is available for review by the
City at a specific office of the franchisee located in the State of
Missouri, which shall include at least the following elements:
1.
Design
type, trunk and feeder design, and number and location of hubs or
nodes.
2.
Distribution
system-cable, fiber, and equipment to be used.
3.
Plans
for standby power.
4.
Longest
amplifier cascade in system (number of amplifiers, number of miles,
type of cable/fiber).
5.
Design
maps and tree trunk maps for the system.
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The system design will be shown on maps of industry standard
scale using standard symbols and shall depict all electronic and physical
features of the cable plant. The City may review the plan and, within
thirty (30) days of the date the plan is made available for City review,
submit comments to the franchisee. Within fifteen (15) days of receipt
of the comments, the franchisee shall notify the City Clerk that a
revised plan is available for review by the City at a specific office
located in the State of Missouri, either incorporating the comments
or explaining why the comments were not included. The City's review
does not excuse any non-performance under a franchise agreement, this
Chapter or other applicable law.
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H.
Emergency Alert System. A franchisee shall comply with 47
U.S.C. Section 544(g) and all regulations issued pursuant thereto.
[R.O. 2006 §630.070; Ord. No. 00.20 §1(Exhibit 1 §7), 6-8-2000]
A.
Open Books And Records.
1.
Subject
to the provisions herein, the City shall have the right to inspect
and copy at any time during normal business hours at an office of
the franchisee located in the State of Missouri, to be designated
by franchisee within two (2) business days after inquiry by the City,
all books, receipts, maps, plans, financial statements, contracts,
service complaint logs, performance test results, records of requests
for service, computer records, codes, programs, and disks or other
storage media and other like material which are reasonably necessary
to monitor compliance with the terms of this Chapter, a franchise
agreement, or applicable law, except such records as are privileged
or protected from disclosure under applicable law. The franchisee
is responsible for collecting the information and producing it at
the location specified above, and by accepting its franchise it affirms
that it can and will do so. The franchisee will make suitable copying
equipment available to the City and will bear the cost of such copying,
which cost is not a franchise fee and falls within one (1) or more
of the exceptions of 47 U.S.C. Section 542(g)(2).
2.
A franchisee
shall maintain in the State of Missouri sufficient financial records
regarding its operations in the franchise area to document accurate
payment of franchise fees.
3.
All
such information received by the City shall remain confidential insofar
as permitted by the Missouri Open Meetings Law and other applicable
State and Federal law.
4.
The
franchisee shall maintain a file of records in the State of Missouri,
in accordance with applicable FCC rules and regulations open to public
inspection, at a location to be designated within two (2) business
days after inquiry by the City.
B.
Communication With Regulatory Agencies. A franchisee shall
keep on file at an office of the franchisee located in the State of
Missouri, to be designated within two (2) business days after inquiry
by the City, copies of all reports required by and certifications
issued by the FCC including, but not limited to, any proof of performance
tests and results, Equal Employment Opportunity reports, and also
all petitions, applications, and communications of all types regarding
the cable system, or a group of cable systems of which the franchisee's
cable system is a part, submitted or received by the franchisee, an
affiliate, or any other person on behalf of the franchisee, either
to or from the FCC, the Securities and Exchange Commission, or any
other Federal or State regulatory commission or agency having jurisdiction
over any matter affecting operation of the franchisee's system. Public
access to such reports shall not be denied.
C.
Reports.
1.
No later
than ninety (90) days after the end of its fiscal year, a franchisee
shall file a written report regarding the cable system serving the
City with the City Clerk, which report may be based on system-wide
information, rather than City-specific information, and shall include:
a.
A
summary of the previous year's activities in development of the cable
system, including but not limited to descriptions of services begun
or dropped, the number of subscribers gained or lost for each category
of service, the number of pay units sold, the amount collected annually
from other users of the system, and the character and extent of the
services rendered to such users;
b.
A
summary of written and other recorded service calls, identifying both
the number and nature of the calls received and an explanation of
the causes and dispositions of such calls, including response time;
c.
An
annual financial report from the previous year;
d.
A
report showing the number of outages and service degradations for
the prior year and identifying separately each planned outage, the
time it occurred, its duration, and the estimated area and number
of subscribers affected; each unplanned outage or service degradation,
the time it occurred, its estimated duration, and the estimated area
and the number of subscribers affected; and the total hours of outages
and service degradations as a percentage of total hours of cable system
operation;
e.
An
ownership report, indicating all persons who at any time during the
preceding year did control or benefit from an interest in the franchise
of ten percent (10%) or more;
f.
A
list of key employees of the franchisee;
g.
A
summary report on the system's technical tests and measurements;
h.
Such
other information as the Board of Aldermen may reasonably direct;
i.
To
the extent there has been no change since the preceding annual report,
that fact may be noted in lieu of an additional report.
2.
Opinion survey report. The franchisee shall submit to the
City Clerk the results of any opinion survey conducted, within thirty
(30) days of completion of the survey.
3.
Special reports. Franchisees shall deliver the following
special reports to the City Clerk:
a.
The
franchisee shall submit quarterly construction reports for any construction
that may be specified in the franchise. The franchisee must submit
updated as-built system design maps within thirty (30) days of the
completion of system construction in any geographic area. The maps
shall be developed on the basis of post-construction inspection by
the franchisee and construction personnel to assess compliance with
system design. Any departures from design must be indicated on the
as-built maps to assist the City in assessing compliance with obligations
under franchise.
b.
Copies
of any notice of deficiency, forfeiture, or other document issued
by any State or Federal agency instituting any investigation or civil
or criminal proceeding regarding the cable system, the franchisee,
or any affiliate of the franchisee, to the extent the same may affect
or bear on operations in the City. This material shall be submitted
to the City Clerk at the time it is filed or within thirty (30) days
of the date it is received.
c.
Copies
of any request for protection under bankruptcy laws, or any judgment
related to a declaration of bankruptcy by the franchisee or by any
person that owns or controls the franchisee directly or indirectly.
This material shall be submitted to the City Clerk at the time it
is filed or within thirty (30) days of the date it is received.
d.
Technical
tests required by the City as specified in this Chapter and the franchise
agreement shall be submitted to the City Clerk within thirty (30)
days after completion of such tests.
e.
franchisee
shall keep on file with the City Clerk its current schedule of charges.
4.
General reports. Each franchisee shall prepare and furnish
to the City Clerk, at the times and in the form prescribed by the
Board of Aldermen, such reports with respect to its operation, affairs,
transactions or property as may be reasonably necessary or appropriate
to the performance of any of the rights, functions or duties of the
City in connection with this Chapter.
D.
Records Required.
1.
A franchisee
shall at all times maintain at an office within the State of Missouri
to be designated within two (2) business days after inquiry by the
City:
a.
Records
of all written or recorded complaints received. The term "complaints" as used herein and throughout this Chapter refers to complaints
about any aspect of the cable system or franchisee's operations including,
without limitation, complaints about employee courtesy.
b.
A
full and complete set of plans, records, and "as built" maps showing
the exact location of all system equipment installed or in use in
the City, exclusive of subscriber service drops.
c.
Records
of outages, indicating date, duration, area, and the estimated number
of subscribers affected, type of outage, and cause.
d.
Records
of service calls for repair and maintenance indicating the date and
time of the service call, the date of acknowledgment and date and
time service was scheduled (if it was scheduled), and the date and
time service was provided, and (if different) the date and time the
problem was solved.
e.
Records
of installation/reconnection and requests for service extension, indicating
date of request, date of acknowledgment, and the date and time service
was extended.
f.
A
public file showing its plan and timetable for any construction regarding
the cable system.
g.
All
rules, regulations, terms and conditions adopted for conduct of franchisee's
business.
2.
The
Board of Aldermen may require retention of additional information,
records and documents from time to time, as may be reasonably necessary
or appropriate to the performance of any of the rights, functions
or duties of the City in connection with this Chapter.
E.
Performance Evaluation.
1.
A franchise
may require specific performance review sessions. The Board of Aldermen
may, at its discretion, hold additional performance evaluation sessions,
but not more frequently than once every three (3) years except as
otherwise agreed to by franchisee. All such evaluation sessions shall
be open to the public and announced in a newspaper of general circulation.
Franchisee shall be notified by mail.
2.
Topics
that may be discussed at any evaluation session may include, but are
not limited to, system performance and construction, franchisee compliance
with this Chapter and a franchise agreement, customer service and
complaint response, subscriber privacy, services provided, programming
offered, service rate structures, franchise fees, penalties, free
or discounted services, applications of new technologies, judicial
and FCC filings, and line extensions.
3.
During
the review and evaluation by the City, a franchisee shall fully cooperate
with the City and shall promptly provide such information and documents
as the City may need to reasonably perform its review.
F.
Voluminous Materials. If any books, records, maps or plans,
or other requested documents are too voluminous, or for security reasons
cannot be moved, then a franchisee may request that the inspection
take place at some other location outside the State of Missouri, provided
that the franchisee must pay all reasonable travel expenses incurred
by the City in inspecting those documents or having those documents
inspected by its designee. Any payments made by the franchisee hereunder
are not a franchise fee and fall within one (1) or more of the exceptions
in 47 U.S.C. Section 542(g)(2).
G.
Retention Of Records — Relation To Privacy Rights. Each franchisee shall take all steps required, if any, to ensure
that it is able to provide the City all information which must be
provided or may be reasonably requested under this Chapter or a franchise
agreement, including by providing appropriate subscriber privacy notices.
Nothing in this Section shall be read to require a franchisee to violate
47 U.S.C. Section 551.
[R.O. 2006 §630.080; Ord. No. 00.20 §1(Exhibit 1 §8), 6-8-2000]
A.
Telephone And Office Availability.
1.
Each
franchisee shall maintain offices and drop-off sites at convenient
locations to subscribers as specified in the franchise, that shall
be open during normal business hours to allow subscribers to request
service, pay bills, and conduct other business. Each franchisee shall
perform service calls, installations, and disconnects at least during
normal business hours, provided that a franchisee shall respond to
outages twenty-four (24) hours a day, seven (7) days a week. Outage
reports should be addressed within twenty-four (24) hours. Each franchisee
shall establish a publicly listed local toll-free telephone number.
The phone must be answered by customer service representatives at
least during normal business hours for the purpose of receiving requests
for service, inquiries, and complaints from subscribers; after those
hours a franchisee shall arrange for the phone to be answered so that
customers can register complaints and report service problems on a
twenty-four (24) hour per day, seven (7) day per week basis, and so
that the franchisee can respond to service outages as required herein.
2.
Under
normal operating conditions, telephone answering time shall not exceed
thirty (30) seconds or four (4) rings, and the time to transfer the
call to a customer service representative (including hold time) shall
not exceed an additional thirty (30) seconds. Under normal operating
conditions a customer will receive a busy signal less than three percent
(3%) of the time. These standards shall be met ninety percent (90%)
of the time, measured quarterly. When the business office is closed,
an answering machine or service capable of receiving and recording
service complaints and inquiries shall be employed. The after-hours
answering service shall comply with the same telephone answer time
standard set forth in this Section. Upon request by the City, franchisee
shall supply information demonstrating that it is meeting the standards
set forth herein.
3.
A franchisee
must hire sufficient staff so that it can adequately respond to customer
inquiries, complaints, and requests for service in its office, over
the phone, and at the subscriber's residence.
B.
Scheduling Work.
1.
All
appointments for service, installation, or disconnection shall be
specified by date. Each franchisee shall specify a specific time at
which the work shall be done, or offer a choice of time blocks, which
shall not exceed four (4) hours in length, unless the subscriber agrees
to a longer period of time. Franchisee may also, upon request, offer
service installation calls outside normal business hours for the express
convenience of the customer. If at any time an installer or technician
believes it impossible to make a scheduled appointment time, an attempt
to contact the customer will be made prior to the time of appointment
and the appointment rescheduled at a time convenient to the customer.
2.
Subscribers
who have experienced two (2) missed appointments due to the fault
of a franchisee shall receive installation free of charge, if the
appointment was for installation. If an installation was to have been
provided free of charge or for other appointments, the subscriber
shall receive a fifty percent (50%) discount on one (1) month of basic
cable service tier or its equivalent.
3.
With
regard to mobility-limited customers, upon subscriber request, each
franchisee shall arrange for pickup and/or replacement of converters
or other franchisee equipment at the subscriber's address or by a
satisfactory equivalent (such as the provision of a postage-prepaid
mailer).
4.
Under
normal operating conditions, requests for service, repair, and maintenance
must be acknowledged by a trained customer service representative
prior to the end of the next business day. A franchisee shall respond
to all other inquiries (including billing inquiries) within five (5)
business days of the inquiry or complaint.
5.
Under
normal operating conditions, installations made within one hundred
fifty (150) feet of the existing distribution system shall be completed
within seven (7) business days after the order is placed. Repairs
and maintenance for service interruptions and other customer location
repairs must be completed within twenty-four (24) hours, or if it
is not possible to be complete such work within twenty-four (24) hours,
then work must have commenced within such time period and be diligently
continued thereafter until completed. Work on all other requests for
service on franchisee's facilities must be begun by the next business
day after notification of the problem, and must be completed within
three (3) days from the date of the initial request, except installation
requests, provided that a franchisee shall complete the work in the
shortest time possible where, for reasons beyond the franchisee's
control, the work could not be completed in those time periods even
with the exercise of all due diligence; the failure of a franchisee
to hire sufficient staff or to properly train its staff shall not
justify a franchisee's failure to comply with this provision. Except
as Federal law permits, no charge shall be made to the subscriber
for this service, unless required due to damage caused by a subscriber.
6.
Franchisee
shall not cancel a service or installation appointment with a customer
after the close of business on the business day preceding the appointment.
7.
The
standards of paragraphs (4) and (5) of this Section shall be met at
least ninety-five percent (95%) of the time, measured on a quarterly
basis.
C.
Notice To Subscribers.
1.
A franchisee
shall provide in writing to each subscriber at the time cable service
is installed, and at least annually thereafter, the following information:
a.
Products
and services offered;
b.
Prices
and options for programming services and conditions of subscription
to programming and other services;
c.
Installation
and service maintenance policies;
d.
Instructions
on how to use the cable service;
e.
Channel
positions of programming carried on the system;
f.
Billing
and complaint procedures, including the address and telephone number
of the local franchise authority's cable office; and
g.
Refund
and credit procedures.
2.
Upon
request, copies of the materials specified in the preceding Subsection
shall be provided to the City. Franchisee shall provide all subscribers
and the City at least thirty (30) days' notice of any significant
changes in the information required to be provided by this Section.
Such notice shall be in writing and by announcement on the system.
Franchisee may provide notice of service and rate changes to subscribers
using any reasonable written means at its sole discretion. Franchisee
need not 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 franchisee and the subscriber.
3.
All
franchisee promotional materials, announcements, and advertising of
residential cable service to subscribers and the general public, where
price information is listed in any manner, shall clearly and accurately
disclose price terms. In the case of pay-per-view or pay-per-event
programming, all promotional materials must clearly and accurately
disclose price terms and,in the case of telephone orders, a franchisee
shall take appropriate steps to ensure that the customer service representatives
clearly and accurately disclose price terms to potential customers
in advance of taking the order.
4.
Each
franchisee shall maintain in the State of Missouri a public file containing
all notices provided to subscribers under these customer service standards,
as well as all written promotional offers made to subscribers.
D.
Interruptions Of Service. A franchisee may intentionally
interrupt service on the cable system only for good cause and for
the shortest time possible and, except in emergency situations, only
after a minimum of forty-eight (48) hours' prior notice to subscribers
and the City of the anticipated service interruption; provided however,
that planned maintenance that occurs between the hours of 12:00 Midnight
and 6:00 A.M. shall not require such notice to subscribers, so long
as notice to the City is given no less than twenty-four (24) hours
prior to such an anticipated service interruption.
E.
Billing.
1.
A franchisee's
first (1st) billing statement after a new installation or service
change shall be prorated as appropriate and shall reflect any security
deposit.
2.
A franchisee's
billing statement must be clear, concise and understandable, must
itemize each category of service and equipment provided to the subscriber,
and must state clearly the charge therefor.
3.
A franchisee's
billing statement must show a specific payment due date not earlier
than the fifteenth (15th) day of the month (or equivalent period)
in which the service being billed is rendered. Any balance not received
within fifteen (15) days after the due date may be assessed a reasonable
processing charge based on costs and/or a late fee. Late fees shall
not exceed three-fourths of one percent (0.75%) per month.
4.
A franchisee
must notify the subscriber that he or she can remit payment in person
at the franchisee's office(s) and inform the subscriber of the address
of the office(s).
5.
Subscribers
shall not be charged a processing fee or late fee or be otherwise
penalized for any failure by a franchisee, including failure to timely
or correctly bill the subscriber, or failure to properly credit the
subscriber for a payment timely made.
6.
On request,
the account of any subscriber shall be credited a prorated share of
the monthly charge for the service if said subscriber is without service
or if service is substantially impaired for any reason for a period
exceeding four (4) hours during any twenty-four (24) hour period,
except where it can be documented that a subscriber seeks a refund
for an outage or impairment which that subscriber caused, or in the
case of a planned outage occurring between the hours of 12:00 Midnight
and 6:00 A.M. of which the City received the required prior notice.
7.
Franchisee
shall respond to all written billing complaints from subscribers within
thirty (30) days.
8.
Refund
checks to subscribers shall be issued no later than (a) the subscriber's
next billing cycle following resolution of the refund request; or
(b) the date of return of all equipment to franchisee, if service
has been terminated.
9.
Credits
for service shall be issued no later than the subscriber's next billing
cycle after the determination that the credit is warranted.
10.
Invoices
shall clearly state that subscribers should attempt to resolve problems
with the franchisee first, but in case of any dissatisfaction subscribers
may contact the City as franchising authority.
F.
Disconnection/Downgrades.
1.
A subscriber
may terminate service at any time.
2.
A franchisee
shall promptly disconnect or downgrade any subscriber who so requests
by giving at least one (1) day notice and reasonably cooperating with
the franchisee regarding the removal of the franchisee's equipment
from the subscriber's location. No charge may be imposed for any voluntary
disconnection, and downgrade charges must comply with the requirements
of Federal law. No charge may be imposed by any franchisee for any
cable service delivered after the requested date of disconnection.
3.
A subscriber
may be asked, but not required, to disconnect a franchisee's equipment
and return it to the nearest business office.
4.
Any
security deposit and/or other funds due the subscriber shall be refunded
on disconnected accounts after the equipment has been recovered by
the franchisee. The refund process shall take a maximum of thirty
(30) days, from the date disconnection was requested to the date the
customer receives the refund.
5.
If a
subscriber fails to pay a monthly subscriber or other fee or charge,
a franchisee may disconnect the subscriber's service outlet; however,
such disconnection shall not be effected until after thirty (30) days
from the due date. If the subscriber pays all amounts due, including
late charges, before the date scheduled for disconnection, the franchisee
shall not disconnect service. After disconnection, upon payment by
the subscriber in full of all fees or charges due, including the payment
of the reconnection charge, if any, and any reasonable security deposit,
the franchisee shall promptly reinstate service on request.
6.
A franchisee
may immediately disconnect a subscriber if the subscriber is damaging
or destroying the franchisee's cable system or equipment. After disconnection,
the franchisee shall restore service after the subscriber provides
adequate assurance that it has ceased the practices that led to disconnection
and paid all proper fees and charges, including any reconnect fees
and amounts owed the franchisee for damage to its cable system or
equipment and any reasonable security deposit.
7.
A franchisee
may also disconnect a subscriber that causes signal leakage in excess
of Federal limits. It may do so without notice, provided that the
franchisee shall immediately notify the subscriber of the problem
and, once the problem is corrected, reconnect the subscriber.
8.
Except
as Federal law may otherwise provide, a franchisee may remove its
property from a subscriber's premises within sixty (60) days of the
termination of service, voluntarily or involuntarily. If a franchisee
fails to remove its property in that period, the property shall be
deemed abandoned.
G.
Changes In Service.
1.
Before
a franchisee unilaterally alters the service it provides to a class
of subscribers, it must provide the City and each affected subscriber
thirty (30) days' written notice by any reasonable means at its sole
discretion, explain the substance and full effect of the alteration,
and provide the subscriber the right within the thirty (30) day period
following notice to opt to receive any combination of services offered
by franchisee. Except as Federal law otherwise provides, subscribers
may not be required to pay any charge (other than the regular service
fee), including an upgrade or downgrade charge, in order to receive
the services selected. No charge may be made for any service or product
that the subscriber has not affirmatively indicated it wishes to receive.
Payment of the regular monthly bill does not in and of itself constitute
such an affirmative indication.
2.
If a
franchisee plans to provide a premium channel without charge to subscribers
who do not subscribe to such premium channel, the franchisee shall,
not later than thirty (30) days before such premium channel is provided
without charge, notify all subscribers in writing by any reasonable
means at its sole discretion of its plans including the time period
involved, notify all subscribers they have a right to request that
the premium channel be blocked, and block the premium channel upon
the request of a subscriber. For purposes of this Section, the phrase "premium channel" shall mean any pay service offered on
a per-channel or per-program basis which offers movies rated by the
Motion Picture Association of America as X, NC-17, or R.
H.
Deposits. A franchisee may require a reasonable, non-discriminatory
deposit on equipment provided to subscribers. Deposits shall be placed
in an interest-bearing account, and the franchisee shall return the
deposit upon return of the equipment, plus interest earned to the
date repayment is made to the subscriber, less any deduction for damages
to the equipment or unpaid charges.
I.
Subscriber Control. A franchisee shall comply with all applicable
laws regarding subscriber ability to block audio and/or video signals.
[R.O. 2006 §630.090; Ord. No. 00.20 §1(Exhibit 1 §9), 6-8-2000]
The City reserves the right to regulate service and equipment
rates to the maximum degree permitted by applicable State and Federal
law. Each franchisee shall comply with all such regulation provisions
that the City may adopt and all Federal laws regarding rates. Failure
to comply shall constitute a material violation of a franchise.
[R.O. 2006 §630.100; Ord. No. 00.20 §1(Exhibit 1 §10), 6-8-2000]
A.
Finding. The City finds that public right-of-ways of the
City to be used by a franchisee or any other person for the provision
of cable service over a cable system are valuable public property
acquired and maintained by the City at great expense to taxpayers.
The City further finds that the grant of a franchise to use public
right-of-ways is a valuable property right without which a franchisee
would be required to invest substantial capital.
B.
Payment To City. As compensation for use of the public right-of-ways,
a franchisee and any other person providing cable service over a cable
system shall pay the City franchise fees. Every franchise agreement
shall specify the amounts a franchisee is initially required to pay
as a percentage of gross revenues, but if the specified amount is
less than the maximum or if the maximum amount permitted increases,
the City may increase it to any amount up to the maximum allowed by
law after sixty (60) days' notice to the franchisee, so long as the
increase may by law be passed on to subscribers.
C.
Not A Tax Or In Lieu Of Any Other Tax Or Fee.
1.
The
franchise fee is not a tax, license or fee subject to any requirement
of voter approval, but rather is a rental charge for special and individualized
use of public property.
2.
The
franchise fee is in addition to all other fees and all taxes and payments
that a franchisee or other person may be required to pay under any
Federal, State or local law, including any applicable property and
amusement taxes, except to the extent that such fees, taxes or assessments
are a franchise fee under 47 U.S.C. Section 542.
D.
Payments.
1.
The
franchise fees and any other costs or penalties assessed by the City
against a franchisee or any other person shall be paid quarterly to
the City and shall commence as of the effective date of a franchise.
The City shall be furnished at the time of each payment with a statement
certified by the franchisee's or other person's respective chief financial
officer or an independent certified public accountant reflecting the
total amount of gross revenues for the payment period. Payments shall
be made to the City no later than thirty (30) days following the end
of each calendar quarter.
2.
In the
event any franchise fee or other payment is not made on or before
the date specified herein, the franchisee and any other person shall
pay interest charges computed from such due date at an annual rate
equal to the commercial prime interest rate of the City's primary
depository bank during the period such unpaid amount is owed, plus
two percent (2%) of the amount due to defray the City's additional
expenses by reason of the delinquency.
E.
No Accord Or Satisfaction. No acceptance of any payment
by the City shall be construed as a release or an accord and satisfaction
of any claim the City may have for further or additional sums payable
as franchise fees under this Chapter or for the performance of any
other obligation of a franchisee or other person.
F.
Audit.
1.
The City shall have the right to inspect all reasonably necessary records and the right to audit and to recompute any amounts determined to be payable under this Chapter. The franchisee shall be responsible for providing the records to the City at an office located within the State of Missouri. Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the franchisee if the franchise fees paid during the audit period are less than ninety-eight percent (98%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the franchisee by the City of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional revenue to be paid to the City, such amount shall be subject to interest as specified in Section 630.100(D)(2). All costs incurred by a franchisee hereunder are not franchise fees, and fall within one (1) or more of the exceptions set forth in 47 U.S.C. Section 542(g)(2) and shall not be passed on to the subscribers in any form.
2.
A franchisee
shall maintain its fiscal and financial records and have all relevant
fiscal and financial records maintained by others on its behalf in
such a manner as to enable the City to determine the cost of assets
of the franchisee which are used in providing services within the
City and to determine gross revenues.
3.
A franchisee
shall report on a quarterly basis to the City Clerk the name and address
of each and every person providing telecommunications and other communications
services over the cable system for which charges are assessed to subscribers
but not received by the franchisee, as well as all such services being
provided by the franchisee in addition to cable services unless franchisee
already has a separate written franchise or license from the City
to provide such other services.
[R.O. 2006 §630.110; Ord. No. 00.20 §1(Exhibit 1 §11), 6-8-2000]
A.
Insurance Required. A franchisee shall maintain, and by
its acceptance of a franchise specifically agrees that it will maintain,
throughout the entire length of the franchise period at least the
following liability insurance coverage insuring the City and the franchisee:
Workers' Compensation and employer liability insurance to meet all
requirements of Missouri law and comprehensive general liability insurance
with respect to the construction, operation and maintenance of the
cable system, and the conduct of the franchisee's business in the
City, in the minimum amounts of:
1.
One
million dollars ($1,000,000.00) for property damage resulting from
any one (1) accident;
2.
Five
million dollars ($5,000,000.00) for personal bodily injury or death
resulting from any one (1) accident; and
3.
Two
million dollars ($2,000,000.00) for all other types of liability.
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These insurance requirements shall not be construed to limit
the liability of a franchisee for damages under any franchise issued
hereunder.
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B.
Qualifications Of Sureties. All insurance policies shall
be with sureties qualified to do business in the State of Missouri,
with a B+7 or better rating of insurance by Best's Key Rating Guide,
Property/Casualty Edition, and in a form approved by the City.
C.
Policies Available For Review. All insurance policies shall
be available for review by the City, and a franchisee shall keep on
file with the City certificates of insurance.
D.
Additional Insureds — Prior Notice Of Policy Cancellation. All general liability insurance policies shall name the City, its
officers, boards, board members, commissions, commissioners, agents,
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given to the
City Clerk. A franchisee shall not cancel any required insurance policy
without submission of proof that the franchisee has obtained alternative
insurance reasonably satisfactory to the Board of Aldermen which complies
with this Chapter.
E.
Failure Constitutes Material Violation. Failure to comply
with the insurance requirements set forth in this Section shall constitute
a material violation of a franchise.
F.
Indemnification.
1.
A franchisee
shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its officials, boards, board members commissions,
commissioners, agents, and employees against any and all claims, suits,
causes of action, proceedings, and judgments for damages or equitable
relief arising out of the construction, maintenance or operation of
its cable system; copyright infringements or a failure by the franchisee
to secure consents from the owners, authorized distributors, or licensees
of programs to be delivered by the cable system; the conduct of the
franchisee's business in the City; or in any way arising out of the
granting of a franchise or a franchisee's enjoyment or exercise of
a franchise granted hereunder, regardless of whether the act or omission
complained of is authorized, allowed or prohibited by this Chapter
or a franchise agreement.
2.
Specifically,
but not by way of limitation on the scope of (1) above, a franchisee
shall, at its sole cost and expense, fully indemnify, defend, and
hold harmless the City, and in their capacity as such, the officers,
agents, and employees thereof, from and against any and all claims,
suits, actions, liability, and judgments for damages or otherwise
subject to Section 638 of the Cable Act, 47 U.S.C. Section 558, arising
out of or alleged to arise out of the installation, construction,
operation or maintenance of its system including, but not limited
to, any claim against the franchisee for invasion of the right of
privacy, defamation of any person, or the violation or infringement
of any copyright, trademark, trade name, service mark, or patent,
or of any other similar right of any person. This indemnity does not
apply to programming carried on any channel set aside for public,
educational or government use, or channels leased pursuant to 47 U.S.C.
Section 532, unless the franchisee was in any respect engaged in determining
the editorial content of the program, or prescreened the programming
for the purported purpose of banning or regulating indecent or obscene
programming.
3.
The
indemnity provision includes, but is not limited to, the City's reasonable
attorneys' fees incurred in defending against any such claim, suit
or proceeding prior to franchisee assuming such defense. The City
shall notify a franchisee of claims and suits as soon as practicable,
but failure to give such notice shall not relieve a franchisee of
its obligations hereunder. Once a franchisee assumes such defense,
the City may at its option continue to participate in the defense
at its own expense.
4.
Notwithstanding
anything to the contrary contained in this Chapter, the City shall
not be so indemnified or reimbursed in relation to any amounts attributable
to the City's own negligence, willful misconduct, intentional or criminal
acts, including in the performance of its obligations under this Chapter
or a franchise agreement.
[R.O. 2006 §630.120; Ord. No. 00.20 §1(Exhibit 1 §12), 6-8-2000]
A.
Security Fund.
1.
Prior
to a franchise becoming effective and on each anniversary date thereafter
during the franchise term including the date of termination, the franchisee
shall post with the City Clerk sufficient funds to serve as a cash
security deposit to be used as a security fund to ensure the franchisee's
faithful performance of and compliance with all provisions of this
Chapter, the franchise agreement, and other applicable law, and compliance
with all orders, permits and directions of the City, and the payment
by the franchisee of any claims, liens, fees or taxes due the City
which arise by reason of the construction, operation or maintenance
of the system. The amount of the security fund on deposit shall be
equal to three percent (3%) of the franchisee's projected annual gross
revenues for the upcoming year or, in the instance of the final deposit,
three percent (3%) of the actual gross revenues for the preceding
year.
2.
In lieu
of a cash security fund, a franchisee may file and maintain with the
City Clerk an irrevocable letter of credit with a surety acceptable
to the City in the amount specified in the preceding paragraph to
serve the same purposes as set forth therein. Said letter of credit
shall remain in effect for the full term of the franchise plus an
additional six (6) months thereafter, or longer if there is any outstanding
obligation or default on the part of the franchisee, as determined
by the Board of Aldermen. The franchisee and its surety shall be jointly
and severally liable under the terms of the letter of credit for the
franchisee's failure to ensure its faithful performance of and compliance
with all provisions of this Chapter, the franchise agreement, and
other applicable law, and compliance with all orders, permits and
directions of the City, and the payment by the franchisee of any claims,
liens, fees or taxes due the City which arise by reason of the construction,
operation or maintenance of the system. The letter of credit shall
provide for thirty (30) days' prior written notice to the City of
any intention on the part of the franchisee to cancel, fail to renew,
or otherwise materially alter its terms. Neither the filing of a letter
of credit with the City, nor the receipt of any damages recovered
by the City thereunder, shall be construed to excuse unfaithful performance
by the franchisee or limit the liability of the franchisee under the
terms of its franchise for damages, either to the full amount of the
letter of credit or otherwise.
3.
The
rights reserved to the City with respect to the security fund are
in addition to all other rights of the City, whether reserved by this
Chapter or authorized by other law or a franchise agreement, and no
action, proceeding, or exercise of a right with respect to such security
fund or letter of credit will affect any other right the City may
have.
4.
The
following procedures shall apply to drawing on the security fund and
letter of credit:
a.
If
the franchisee fails to make timely payment to the City of any amount
due as a result of a franchise, fails to make timely payment to the
City of any amounts due under a franchise agreement or applicable
law, fails to make timely payment to the City of any taxes due, or
fails to compensate the City within ten (10) days of written notification
that such compensation is due for any damages, costs or expenses the
City suffers or incurs by reason of any act or omission of the franchisee
in connection with its franchise agreement or the enforcement of its
franchise agreement, the City may withdraw the amount thereof, with
interest and any penalties, from the security fund or from funds available
under the letter of credit.
b.
Within
three (3) days of a withdrawal from the security fund or under the
letter of credit, the City shall mail, by certified mail, return receipt
requested, written notification of the amount, date, and purpose of
such withdrawal to the franchisee.
c.
If,
at the time of a withdrawal from the security fund and under the letter
of credit by the City, the amounts available are insufficient to provide
the total payment towards which the withdrawal is directed, the balance
of such payment shall continue as the obligation of the franchisee
to the City until it is paid.
d.
No
later than thirty (30) days after mailing of notification to the franchisee
by certified mail, return receipt requested, of a withdrawal under
the security fund or letter of credit, the franchisee shall deliver
to the City for deposit in the security fund an amount equal to the
amount so withdrawn or shall restore the letter of credit. Failure
to make timely delivery of such amount to the City or to restore the
letter of credit shall constitute a material violation of the franchise.
e.
Upon
termination of the franchise under conditions other than those stipulating
forfeiture of the security fund, the balance then remaining in the
security fund shall be withdrawn by the City and paid to the franchisee
within six (6) months of such termination, provided that there is
then no outstanding obligation or default on the part of the franchisee.
5.
In addition
to or in lieu of a security fund or letter of credit, a franchise
may require such guarantees as the City deems to be in the public
interest.
B.
Performance Bond.
1.
Prior
to any cable system construction, upgrade, or other such work in the
public right-of-ways, a franchisee shall establish in the City's favor
a performance bond to ensure the franchisee'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.
2.
In the
event a franchisee subject to such a performance bond fails to complete
the cable system construction, upgrade, or other work in the public
right-of-ways 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 the cost of completing
or repairing the system construction, upgrade, or other work in the
public right-of-ways, 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 system construction, upgrade, or other such work
in the public right-of-ways and payment of all construction obligations
of the cable system to the satisfaction of the Board of Aldermen,
the Board of Aldermen 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:
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"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."
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C.
Failure Constitutes Material Violation. Failure to maintain
a required security fund, letter of credit, or performance bond shall
constitute a material violation of a franchise.
D.
Remedies. In addition to any other remedies available at
law or equity, the City may apply any one (1) or a combination of
the following remedies in the event a franchisee violates this Chapter,
its franchise agreement, other applicable ordinances, or applicable
State or Federal law:
1.
Revoke
the franchise or shorten the term pursuant to the procedures specified
in this Chapter.
2.
Impose penalties available under Section 630.120(H) and other applicable State and local laws for violation of City ordinances.
3.
In addition
to or instead of any other remedy, seek legal or equitable relief
from any court of competent jurisdiction.
4.
Apply
any remedy provided for in a franchise agreement, including enforcing
provisions, if any.
E.
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 Board of Aldermen 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 Board of Aldermen, the Board of Aldermen 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 Section 630.120(E)(3).
2.
Prior
to shortening the term of or revoking a franchise, the Board of Aldermen
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 Board of Aldermen 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 Board of Aldermen 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 Board of Aldermen 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 an exception to
the definition of a "franchise transfer" and after which the franchise
transfer was ultimately approved), the Board of Aldermen may revoke
the franchise, following a public hearing before the Board of Aldermen,
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
Board of Aldermen 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, the following
procedures and rights are effective:
a.
The
Board of Aldermen 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 Board of Aldermen 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 paragraph 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.
b.
At
the expiration of the term for which any franchise is granted (if
renewal is either not sought or denied) the City, at its election,
shall have the right to purchase and take over all or any part of
a cable system located within the City upon the payment to the franchisee
of a sum equal to the fair market value of the system or the part
taken (based on system value as a going concern). In the event of
revocation, as provided for in this Chapter, the City at its election
shall have the right to purchase and take over all or any part of
a cable system located within the City upon payment to franchisee
of a sum equal to an equitable price for the system or the part taken.
If the City elects to purchase only a part of the system, the fair
market value shall include both the fair market value of the part
purchased together with the diminution in value of the part not purchased.
The price for the cable system or the part taken shall not include,
and the franchisee shall not receive, anything for the value allocated
to the franchise itself unless such valuation is now or subsequently
provided for by the Cable Act or in the franchise itself. Upon the
exercise of the option by the City and its service of an official
notice of such action upon the franchisee, the franchisee shall immediately
transfer to the City possession and title to all of the purchased
facilities and property, real and personal, of the cable system, with
any existing liens and encumbrances (provided the City can require
application of purchase price to such liens and encumbrances at closing);
and the franchisee shall execute such warranty deeds or other instruments
of conveyance to the City as shall be reasonably necessary for this
purpose. Each contract entered into by franchisee with reference to
its operations under the franchise shall be subject to the exercise
of this option by the City.
c.
If
a cable system is abandoned by a franchisee during the franchise term,
or if the franchisee fails to operate its system in accordance with
this Chapter during any transition period, or the franchisee otherwise
terminates the franchise, upon decision of the Board of Aldermen made
after providing the franchisee reasonable notice of at least thirty
(30) days and an opportunity to be heard, the ownership of all portions
of the cable system in public right-of-ways shall revert to the City
and the City may sell, assign or transfer all or part of the assets
of the system, or the Board of Aldermen, at its option, may operate
the system, designate another entity to operate the system temporarily
until the franchisee restores service under conditions acceptable
to the City or until the franchise is revoked and a new franchisee
selected by the City is providing service, seek an injunction requiring
the franchisee to continue operations, and/or seek to recover all
damages sustained as a result of such abandonment or failure to operate.
A franchisee retains all rights to contest such actions and all rights
to compensation provided by law.
A franchisee shall be deemed to have abandoned its system, or
failed to operate its system during any transition period, if
(1)
The franchisee fails to provide cable service in accordance with
its franchise over a substantial portion of the cable system for ninety-six
(96) consecutive hours, unless the Board of Aldermen authorizes a
longer interruption of service in writing; or
(2)
The franchisee, for any period, willfully and without cause refuses
to provide cable service in accordance with its franchise over a substantial
portion of the cable system.
5.
Notwithstanding
any other provision of this Chapter, where the City has issued a franchise
requiring the completion of construction, system upgrade, or other
specific obligation by a specified date, failure of the franchisee
to complete such construction or upgrade, or to comply with such other
specific obligations as may be required, within such time limits,
as same shall be extended by the Board of Aldermen for good cause
shown by the franchisee, will result in the forfeiture of the franchise
upon decision of the Board of Aldermen made after providing the franchisee
with reasonable notice of at least thirty (30) days and an opportunity
to be heard.
F.
Remedies Cumulative. All remedies under this Chapter and
the franchise agreement are cumulative unless otherwise expressly
stated. The exercise of one (1) remedy shall not foreclose use of
another, nor shall the exercise of a remedy or the payment of penalties
relieve a franchisee of its obligations to comply with its franchise.
Remedies may be used alone or in combination as permitted by law;
in addition, the City may exercise any rights it has at law or equity.
G.
Relation To Insurance And Indemnity Requirements. Recovery
by the City of any amounts under insurance, a performance bond, a
security fund or letter of credit, or otherwise does not limit a franchisee's
duty to indemnify the City in any way; nor shall such recovery relieve
a franchisee of its obligations under a franchise, limit the amounts
owed to the City, or in any respect prevent the City from exercising
any other right or remedy it may have.
H.
Penalties. For violation of provisions of this Chapter,
subject to judicial procedures, penalties shall be chargeable to the
franchisee as follows:
1.
For
purportedly transferring the franchise without approval: Five hundred
dollars ($500.00) per day for each violation for each day the violation
continues;
2.
For
violation of customer service standards: One hundred dollars ($100.00)
per violation for each day the violation continues; and
3.
For
all other material violations for which actual damages may not be
ascertainable: Five hundred dollars ($500.00) per day for each violation
for each day the violation continues.
[R.O. 2006 §630.130; Ord. No. 00.20 §1(Exhibit 1 §13), 6-8-2000]
A.
Discriminatory Practices Prohibited.
1.
A franchisee
shall not deny service, deny access, or otherwise discriminate against
subscribers, users, programmers, or residents or businesses in the
City on the basis of race, color, religion, national origin, sex or
age.
2.
A franchisee
shall not unreasonably discriminate among similarly situated persons
or take any retaliatory action against a person because of that person's
exercise of any right it may have under Federal, State or local law,
nor may the franchisee require a person to waive such rights as a
condition of providing service.
3.
A franchisee
shall not deny access to cable service or levy different rates and
charges on any group of potential residential cable subscribers because
of the income of the residents of the local area in which such group
resides.
4.
A franchisee
is prohibited from unreasonably discriminating in its rates or charges
or from granting undue preferences to any subscriber, potential subscriber,
or group of subscribers or potential subscribers; provided however,
that a franchisee may offer temporary, bona fide promotional discounts
in order to attract or maintain subscribers, so long as such discounts
are offered on a non-discriminatory basis to similar classes of subscribers
throughout the City; and a franchisee may offer reasonable discounts
for senior citizens or the economically disadvantaged, discounts or
customer specific pricing for bulk rate customers, and such other
discounts as it is expressly entitled to provide under Federal law,
if such discounts are applied in a uniform and consistent manner.
A franchisee shall comply at all times with all applicable Federal,
State and City laws and all executive and administrative orders relating
to non-discrimination.
B.
Equal Employment Opportunity. A franchisee shall not refuse
to employ, discharge from employment, or discriminate against any
person in compensation or in terms, conditions, or privileges of employment
because of race, color, religion, national origin, sex or age. A franchisee
shall comply with all Federal, State and local laws and regulations
governing equal employment opportunities, as the same may be from
time to time amended, including but not limited to 47 U.S.C. Section
554.
C.
Subscriber Privacy. A franchisee shall at all times abide
by and protect the privacy of all subscribers pursuant to the provisions
of Section 631 of the Cable Act, 47 U.S.C. Section 551. A franchisee
shall not condition subscriber service on the subscriber's grant of
permission to disclose information which, pursuant to Federal or State
law, cannot be disclosed without the subscriber's explicit consent.
[R.O. 2006 §630.140; Ord. No. 00.20 §1(Exhibit 1 §14), 6-8-2000]
A.
Compliance With Laws. Each franchisee 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.
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.
No Recourse Against The City. Without limiting such immunities
as the City or other persons may have under applicable law, including
but not limited to 47 U.S.C. Section 555a, a franchisee shall have
no recourse whatsoever against the City or its officials, members,
boards, commissions, agents or employees for any loss, costs, expense,
liability or damage arising out of any action undertaken or not undertaken
pursuant to a franchise agreement or any provision or requirement
of this Chapter or because of the enforcement of this Chapter or the
City's exercise of its authority pursuant to this Chapter, a franchise
agreement, or other applicable law, unless such recourse is expressly
authorized by Statute, this Chapter or other ordinance.
D.
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
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.
E.
Incorporation By Reference. Any franchise granted pursuant
to this Chapter shall by implication include a provision which shall
incorporate by reference this Chapter into such franchise as fully
as if copied therein verbatim.
F.
Force Majeure. A franchisee shall not be deemed in default
of provisions of its franchise where performance was hindered by war
or riots, civil disturbances, floods, or other natural catastrophes
beyond the franchisee's control, and a franchise shall not be revoked
or a franchisee penalized for such non-compliance, provided that the
franchisee takes prompt and diligent steps to bring itself back into
compliance and to comply as soon as reasonably possible under the
circumstances with its franchise without unduly endangering the health,
safety, and integrity of the franchisee's employees or property or
the health, safety and integrity of the public, public right-of-ways,
public property or private property.
G.
Public Emergency. In the event of a public emergency or
disaster as determined by the City acting through such officials as
may be available given the emergency conditions, a franchisee immediately
shall make the cable system, employees and property, as may be reasonably
necessary, available for use by the City or other civil defense or
governmental agency designated by the City for the term of such emergency
or disaster for emergency purposes. In the event of such use, a franchisee
shall waive any claim that such use by the City constitutes a use
of eminent domain, provided that the City shall return use of the
system, employees and property to the franchisee promptly after the
emergency or disaster has ended.
H.
Connections To System — Use Of Antennae.
1.
Subscribers
shall have the right to attach devices to a franchisee's system to
allow them to transmit signals or services for which they have paid
to VCRs, receivers, and other terminal equipment. Subscribers also
shall have the right to use their own remote control devices and converters,
inside wire, and other similar equipment, subject to market availability,
and a franchisee shall provide information to subscribers which will
allow them to adjust such devices so that they may be used with the
franchisee's system.
2.
A franchisee
shall not, as a condition of providing service, require a subscriber
or potential subscriber to remove any existing antenna, or disconnect
an antenna except at the express direction of the subscriber or potential
subscriber, or prohibit or discourage a subscriber from installing
an antenna switch, provided that such equipment and installations
are consistent with applicable codes.
3.
Regardless
of changes in technology and equipment, channels, facilities and equipment
for public, educational and governmental use will remain accessible
to subscribers and users.
I.
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 paragraph shall not apply
in the context of obligations which continue on a daily basis, such
as the obligation to operate a cable system.
J.
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.
