City of Lake Saint Louis, MO Cable Services

General Findings Regarding Cable Services. The City finds that cable service has become an integral part of its citizens' lives, and that evolving cable systems have the potential to play an even more dramatic role in the future, providing great benefits and advanced capabilities to residents of the City. At the same time, the rapidly emerging role of cable systems as an integrated broadband communications platform necessitates a finding that the local government has a legitimate and vital role to play in regulating cable services in a manner that ensures high quality customer service while at the same time fostering competition to the extent permitted under law. The Board further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers that are vested in the City.

Unlawful To Operate Without A Franchise. It shall be unlawful for any person to construct, operate or maintain a cable system or to provide cable service or other competing multi-channel video services in the City without a franchise, unless otherwise specifically authorized under applicable Federal or State law. Consistent with Article V any such person shall be subject to a fine of five hundred dollars ($500.00) per day. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Code to the fullest extent allowed by law including, but not limited to, the payment of a franchise fee. This Section shall not apply to a grantee who has properly asserted its intent and is diligently pursuing renewal of the franchise pursuant to 47 USC Section 546.

Franchise Not Exclusive.

Any franchise granted pursuant to this Chapter shall be non-exclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system or any component thereof to any other person including itself, as it deems appropriate, subject to this Code and applicable Federal and State law.

The terms and conditions of any cable franchises granted or renewed pursuant to this Chapter shall be, when taken as a whole, no less burdensome or more beneficial than any other cable franchises granted or renewed pursuant to this Chapter, when taking into consideration the context in which the earlier terms were adopted. Provided however, that nothing herein shall be construed as requiring the use of identical terms or conditions or limit the enforceability of conditions that are freely negotiated.

Nothing in this Subsection shall be deemed to create any cause of action or claim of breach by any franchisee or third party.

Franchise Territory. Every cable franchise shall apply to the entire territorial area of the City, as it exists now or may later be configured.

Federal, State And City Jurisdiction.

This Chapter and Code shall be construed in a manner consistent with all applicable Federal and State laws.

In the event that the Federal or State Government discontinues pre-emption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, City may, if it so elects, adopt rules and regulations in these areas to the extent permitted by law and the reasonable exercise of the City's Police powers. Unless otherwise provided by the Governing Body for good cause, such rules and regulations shall be applicable to grantee upon thirty (30) days' written notice and opportunity to comment.

The provisions of this Chapter and Code shall apply to all cable franchises granted or renewed after or simultaneously with the effective date of this Chapter. This Chapter and Code shall also apply to all existing franchises to the extent not inconsistent with the terms of any such franchise or applicable law and to the extent that it does not impose additional material burdens on such grantee. A cable franchise (including all of grantee's particular rights, powers, protections, privileges, immunities and obligations associated therewith as the same exist on the date hereof) shall constitute a legally binding contract between the City and grantee and, as such, cannot be amended, modified or changed by either the grantor or the grantee without the consent of the other party in any manner whatsoever, whether by ordinance, rule, regulation or otherwise, to impose on grantee more stringent or burdensome requirements or conditions. In the event of any conflict between the terms and conditions of a franchise and the provisions of this Chapter or Code and other generally applicable regulatory ordinances of the City, the specific terms of the franchise shall control; provided however, that nothing herein contained shall preclude the City from the proper exercise of its Police powers.

In the event of a change in State or Federal law which by its terms would require the City to amend this Chapter or Code, the parties shall modify the existing franchise in a mutually agreed upon manner.

Nothing in this Code shall be deemed to restrict the Governing Body from authorizing a franchise having express requirements that differ from those established by the Code; provided that such different requirements do not violate applicable law.

Initial Franchise Applications. Any person desiring an initial franchise for a cable system shall file an application with the City. A non-refundable application fee as may be hereinafter established by the City shall accompany the application, which shall not be considered or credited against the collection of applicable franchise fees.

Consideration Of Initial Applications.

Upon receipt of any application for an initial franchise, the City Administrator shall prepare a report and make his/her recommendations respecting such application to the Board of Aldermen.

A public hearing shall be held prior to any initial franchise grant at a time and date approved by the Board. Within thirty (30) days after the close of the hearing, the Board shall make a decision based upon the evidence received at the hearing as to whether or not the franchise(s) should be granted and, if granted, subject to what conditions.

Franchise Renewal. Franchise renewals shall be in accordance with applicable law including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended. The City and a grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

Permits For Non-Franchised Entities. The City may issue a license to a person other than the grantee to permit that person to traverse any portion of a grantee's franchise area within the City in order to provide cable service outside but not within the City. Such license or easement, absent a grant of a franchise in accordance with this Chapter, shall not authorize nor permit said person to provide cable service of any type to any home or place of business within the City. Such license shall be granted pursuant to the requirements of Article II of this Chapter.

Section 630.350 Design, Services and Capabilities.

[Ord. No. 1681 §1(3.2), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]

Cable System Design. Every grantee shall offer cable service that meets the current and future cable-related needs of the City. Such cable service shall, at a minimum, be comparable to cable services offered by that grantee or its affiliates operating any head-end serving the City and surrounding municipalities in St. Charles County. The franchise shall incorporate a description of the grantee's cable system, including the general design and capabilities of the cable system, to identify for the City how the cable system will meet the current and future cable needs of the City.

The Cable System. Every cable system shall pass by every single-family dwelling unit and multiple-family dwelling unit within the franchise area in accordance with line extension policies set forth in this Chapter. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in this Chapter unless otherwise specified in the franchise.

Drops To Public Buildings.

Every grantee shall provide installation of at least one (1) cable drop and one (1) outlet, provide monthly basic cable service, without charge, to public buildings specified by the City in the applicable franchise where the drop does not exceed two hundred (200) feet. All accredited K — 12 schools shall also receive one (1) cable drop and one (1) outlet and basic cable service at no charge, subject to the above two hundred (200) foot limit. The location of such cable drops and outlets shall be determined in cooperation with the management of the public building to which the connection is to be made. Following the City's designation of additional public building(s) to receive cable service, a grantee shall complete construction of the drop and outlet within ninety (90) days if the City requests construction, weather permitting and subject to payment of the direct incremental costs of installation in excess of two hundred (200) feet. Drops and outlets that are in addition to the one (1) free drop and outlet required by this Section shall be provided by a grantee at the cost of grantee's time and material. Alternatively, at an institution's request, the institution may add outlets at its own expense, as long as such installation meets the grantee's standards, which shall be made readily available to any public entity upon request. Additional outlets and services to public buildings are subject to the applicable commercial rate.

All such cable service outlets shall not be utilized for commercial purposes. The City shall take reasonable precautions to prevent any use of a grantee's cable system in any inappropriate manner or that may result in loss or damage to the cable system. Users of such outlets shall hold the grantee harmless from any and all liability or claims arising out of their use of such outlets, other than for those claims arising out of improper installation or faulty equipment.

In instances where the drop line from the feeder cable to the public building, school or library exceeds two hundred (200) feet, the grantee may charge for its direct incremental costs that are incurred in exceeding this length.

School And Library Cable Modems. Unless otherwise specified in the applicable franchise, upon activation and commercial offering of two-way cable modem service within the franchise area, every grantee shall provide upon written request a courtesy cable modern and cable internet service without charge to every State accredited K — 12 school and library in the franchise area.

Use Of Grantee's Facilities. Subject to any applicable State or Federal regulations, the City shall have the right to install and maintain, free of charge, upon the poles and within the underground pipes and conduits of a grantee, any wires and fixtures desired by the City for public purposes. Provided, however, that:

Such use by grantor does not unreasonably interfere with the current or future use by grantee;

Such use by grantor is restricted to non-commercial public purposes; and

Grantor takes reasonable precautions to prevent any use of grantee's facilities in any manner that results in an inappropriate use thereof or any loss or damage to the cable system.

For the purposes of this Subsection, "public purposes" includes, but is not limited to, the use of the structures and installations for grantor, fire, Police, traffic, utility and/or signal systems but not for cable system purposes in competition with the grantee. The grantee shall not deduct the value of such use of its facilities from its franchise fee and/or other fees payable to grantor.

Upgrade Of System. Every grantee shall upgrade its cable system, herein referred to as the "system upgrade", if required, as set forth in its respective franchise.

Emergency Alert Capability. Every grantee shall at all times provide the system capabilities to comply with the FCC's Emergency Alert System rules and regulations. Provided, that at a minimum these capabilities will remain in place even if the FCC at some future dates eliminates the current regulations.

Periodic Review. The franchise shall include provisions to provide for a "periodic review" between the City and a grantee to evaluate changes in law, technology or service and reasonable procedures for mutually agreed upon modifications to the franchise to incorporate changes identified as desirable or necessary as a result of any such periodic review.

Closed Captioning And Descriptive Audio Service. Every grantee will make audio descriptive service and closed captioning capabilities available to the extent required by State and Federal law.

Standby Power. Within twelve (12) months of activation of the system, the grantee shall provide standby power generating capacity capable of providing at least twelve (12) hours of emergency supply at the cable system head-end. For nodes, two (2) hours with emergency power supply. Every grantee shall maintain standby power system supplies throughout the major trunk cable networks capable of providing emergency power within the standard limits of commercially available power supply units.

Status Monitoring. Every grantee shall provide an automatic status monitoring system, or a functional equivalent, when the cable system has been activated for interactive service provided that such status monitoring is technically and economically feasible.

HDTV/ATV Conversion. Conversion to High Definition Television/Advanced Television (HDTV/ATV) formats shall occur in accordance with applicable law.

Joint Trenching. In addition to other coordination requirements, cable drops and extensions shall be constructed either simultaneous ditching (joint trenching) with other utilities or included within conduit facilities constructed as part of the street or related infrastructure installations in new subdivisions or new construction. The City shall review requests for exceptions to this requirement and may grant waivers only on showing of good cause.

Location Of Above-Ground Facilities. Cable vaults, pedestals, boxes and covers unless underground shall be installed within the rear building lines unless otherwise approved by the City. Where joint trenching has been waived by the City, the property owner's ground that has been disturbed in the established subdivision will be promptly restored and sodded by franchisee.

Section 630.360 Institutional Network and Public, Educational and Governmental Access or "PEG Access".

[Ord. No. 1681 §1(3.3), 12-17-2001]

Institutional Network, Access Channels.

Every grantee shall, to the extent required in its franchise and subject to applicable law, provide or fund on an equal basis with other cable providers whose franchises are granted or renewed after the adoption of this Code an institutional network that provides two-way broadband voice, video and data capabilities for use by governmental, educational and other publicly-funded or non-profit local community service organizations identified by the City.

Every grantee shall also provide a channel or channels, bandwidth capacity, service and funding for separate public, educational and government access channels as specified in their franchise. All such PEG access channels shall be available to all subscribers as part of their basic cable service. Given the on-going changes in the state of technology as of the effective date of this Code, absent the express written consent of the City, grantee shall transmit PEG access channels in the format or technology utilized to transmit all of the channels on the basic cable service tier. Oversight and administration of the PEG access channels shall be set forth in the franchise.

Proof Of Performance Testing. To ensure high quality service on the institutional network and access channels, proof of performance testing throughout the system and on all channels will be made available to the City to the extent required in a franchise. Every grantee will monitor access channels throughout the cable system to determine the level of technical quality of access channels is in conformance with FCC rules and to ensure that the level of technical quality on such access channels is the same as on other channels within the cable system. In the event that a complaint is made by a programmer of any access channels, the grantee shall immediately investigate the complaint and determine whether the grantee is in compliance with the technical standards set forth in Section 630.370 of this Chapter.

Section 630.370 Technical Standards and Customer Service Practices.

[Ord. No. 1681 §1(3.4), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]

General Technical Standards And Customer Service Practices.

This Chapter incorporates cable service technical standards and establishes customer service practices that every grantee must satisfy.

Every grantee shall maintain such equipment and keep such records as required to comply with all customer service and technical standards required by these regulations and other applicable laws. The grantee shall at all times assist and cooperate with grantor in explaining, interpreting and understanding such records or reports.

Test And Compliance Procedure. Tests for a cable system shall be performed periodically in a manner so as to conform with FCC specifications. The tests may be witnessed by representatives of the City and written test reports shall be made available to the City upon request. If any test locations fail to meet the performance standards, the grantee shall be required to indicate what corrective measures have been taken and shall have the site retested.

Cable System Office Hours And Telephone Availability.

Every grantee shall maintain a conveniently located customer service center which shall include a place where subscribers may pay their bills, pick up and return converter boxes and comparable items, and receive information on the grantee and its services. Such service center shall be open at least during normal business hours. Grantee shall also maintain a publicly listed toll-free or local telephone line that is available to subscribers twenty-four (24) hours a day, seven (7) days a week.

Every grantee shall have trained company representatives available to respond to subscriber telephone inquiries during normal business hours.

After normal business hours, the telephone access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained representative on the next business day.

Under normal operating conditions, telephone answer time by a trained customer service representative or automated response unit, including wait time, shall not exceed thirty (30) seconds when the connection is made. If a call must be transferred, transfer time shall not exceed thirty (30) seconds. Under normal operating conditions, these standards shall be met no less then ninety percent (90%) of the time measured on a quarterly basis.

Under normal operating conditions, a grantee shall establish an inbound telephone system upon which subscribers shall not receive a busy signal more than three percent (3%) of the time.

A grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply.

Service Calls And Installations. Under normal operating conditions, each of the following standards must be met no less than ninety-five percent (95%) of the time as measured on a quarterly basis:

Standard installations will be performed within seven (7) business days after an order has been placed. "Standard installations" are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.

The appointment window alternatives for installations, service calls, and other installation activities will be either a specific time or within a maximum four (4) hour time block during normal business hours. The grantee may schedule service calls and other installation activities outside of normal business hours for the express convenience of a subscriber, if so requested.

A grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.

If a grantee's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber must be contacted. The appointment must be rescheduled, as necessary, at a time which is convenient for the subscriber.

Repairs And Interruptions.

Under normal operating conditions and excluding conditions beyond the control of a grantee, every grantee will begin working on service interruptions and outages within a reasonable time frame but in no event later than twenty-four (24) hours after the service interruption or outage becomes known. The grantee must begin actions to correct other service problems on the business day following notification of such service problems.

The term "service interruption" means the loss of picture or sound on one (1) or more cable channels or cable internet service connectivity.

Work on requests for service, excluding conditions beyond the control of a grantee, must begin by the next business day after notification of the problem and shall exercise all due diligence to complete the work in the shortest period of time possible.

Outside repairs to cable plant, which cannot be made by the initial service technician dispatched, shall under normal operating conditions be rescheduled within twenty-four (24) hours of the originally scheduled service call. The subscriber does not need to be home for outside plant and line repairs.

A grantee may interrupt service only for good cause and for the shortest time reasonably possible, including interruption for system upgrade, maintenance and repair. Subject to the reasonable safety precautions for the benefit of the grantee's employees and agents, routine maintenance shall occur at times that affect the fewest number of subscribers, generally between 12:00 A.M. and 6:00 A.M. To the extent that specific neighborhoods will be affected by a planned outage, such as during an upgrade, the grantee shall provide advance notice through telephone calls, door hangers and/or other reasonable means.

A grantee shall provide a credit equivalent to a pro rata of the monthly cable rate for each service interruption exceeding four (4) hours in any twenty-four (24) hour period unless it is demonstrated that the subscriber caused the outage, or the outage was planned as part of an upgrade or other work that occurred between the hours of 12:00 A.M. and 6:00 A.M. of which the City and the subscriber received appropriate prior notification. A subscriber is entitled to a full refund for any cable system or disruption to a pay-per-view event. These credits and refunds shall be made available upon request by subscriber describing the time, date and nature of the disruption experienced.

Technicians capable of performing service-related emergency repairs and maintenance must be available twenty-four (24) hours a day, including weekends and holidays.

No charge shall be made to a subscriber for any service call relating to grantee owned and grantee maintained equipment after the initial installation of cable service unless the problem giving rise to the service request can be demonstrated by grantee to have been:

Caused by the negligence or malicious destruction of cable equipment by the subscriber; or

A problem established as having been non-cable system or cable service in origin.

A grantee may also assess a service charge for repeat service calls to the same address in instances where the problem was not caused by the grantee.

Cable drop lines, cable trunk lines or any other type of outside wiring that comprise part of a grantee's cable system that are located underground shall be placed in such locations pursuant to City Code, and the surrounding ground shall be restored as close as is practical to its condition immediately prior to such underground construction activity within a reasonable period of time after connection to the cable system. Except for a grantee's maintenance facilities, no cable drop line, cable trunk line or any other type of outside wiring shall be permitted to lay upon the ground for an unreasonable period of time within the City except for the express purpose of being immediately connected to the cable system of grantee. The requirements of this Subsection shall apply to all installation, reinstallation, service or repair commenced by a grantee within the City during normal operating conditions.

Disconnections And Downgrades.

If any subscriber fails to pay a properly due monthly subscriber fee or any other properly due fee or charge, the grantee may disconnect the subscriber's outlet; provided however, that such disconnection shall not be effected until after the later of:

Thirty (30) days after the due date of said delinquent fee or charge; or

Fifteen (15) days after delivery to subscriber of written notice of the intent to disconnect.

If a subscriber pays before expiration of the later of (a) or (b), the grantee shall not disconnect. Provided however, that this Section does not apply to subscribers disconnected as a result of insufficient funds.

No subscriber may be disconnected without prior written notice.

No subscriber may be disconnected for non-payment if payment of outstanding balances is made before the scheduled date for disconnection, up to and including the last business day before the scheduled disconnection.

No subscriber may be disconnected due to a grantee's failure to timely or correctly post payments.

No subscriber may be disconnected outside of normal business hours or on Sundays or holidays.

Absent extenuating circumstances, a grantee is not required to reconnect a subscriber with an undisputed outstanding balance.

A grantee is permitted to refuse orders for premium or "pay-per-view" services from subscribers with a record of non-payment.

A grantee may disconnect subscriber premises that are responsible for signal leakage in excess of applicable Federal limits. A grantee may effectuate such disconnection without advance notice, provided that a grantee shall immediately notify the subscriber with door tags and/or telephone calls or other reasonable means. If the source of the signal leakage is remedied and the subscriber was not the cause of such leakage, the grantee shall reconnect the subscriber at no charge. If the subscriber was the cause of the signal leakage, the grantee may charge a reasonable reconnection fee. For purposes of this Section, use of FCC-approved navigation devices does not in and of itself constitute subscriber caused signal leakage.

Subscribers may request disconnection or a downgrade of cable service at any time. A grantee may not impose any charge for service delivered after the requested date of disconnection. As provided under Federal law, subscribers may request a downgrade at no charge if made within thirty (30) days of a rate increase.

10.

Nothing in this Chapter or Code shall limit the right of a grantee to deny cable service to any household or individual which has a negative credit or cable service history with the grantee, which may include non-payment of bills, theft or damage to the grantee's equipment, outstanding balances, or threats or assaults on employees of the grantee in the course of their employment. In the event cable service is denied, the grantee will give notice to the subscriber of the right to contact the appropriate authority as designated by the City.

Communications Between Grantee And Subscribers.

Notifications to subscribers.

Every grantee shall provide written information to subscribers on each of the following topics at the time of installation, at least annually to all subscribers, and at any time upon request of a subscriber:

(1)

Product and services offered;

(2)

Prices and options for programming services and conditions of subscription to programming and other services and facilities.

(3)

Installation and service maintenance policies;

(4)

Instructions on how to use services;

(5)

Channel positions of programming offered on a system; and

(6)

Billing and complaint procedures, including the name, address and telephone number of the City.

Subscribers will be given thirty (30) days' advance notice of any changes in rates, programming services or channel positions if the change is within the control of the grantee. All such notice shall be provided in writing by any reasonable means. In addition, the grantee shall notify subscribers thirty (30) days in advance of any significant changes in other information required by this Section. Notwithstanding the foregoing or any provision of this franchise to the contrary, a grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee or any other fee, tax assessment or change of any kind imposed by any government entity on the transaction between the grantee and the subscriber.

Billing.

Bills must be clear, concise and understandable. Bills must be fully itemized including, but not limited to, basic and premium service charges and equipment charges.

Bills must clearly delineate all activity during the billing period, including optional charges, rebates and credits.

In case of a billing dispute, a grantee must respond to a written complaint from a subscriber within thirty (30) calendar days.

Credits for service shall be issued no later than the subscriber's next billing cycle after determination that the credit is warranted.

Late charges. A grantee may impose a monthly fee for any delinquent balance owed by a subscriber, subject to the following:

At least ten (10) days before the date the fee is imposed, the subscriber shall be given written notice, on the face of the bill or by separate notice, of:

(1)

The date after which the fee will be imposed if the balance is not paid; and

(2)

The amount of the fee that will be imposed.

The fee for the delinquent payment shall not exceed five percent (5%) of the amount of the delinquent balance per month or five dollars ($5.00) per month, whichever is greater.

Refunds. Refund checks will be issued promptly, but no later than either:

The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier; or

The return of equipment supplied by the grantee if cable services are terminated.

Complaint Log. Subject to the privacy provisions of 47 U.S.C. Section 521 et seq., every grantee shall prepare and maintain written records of all complaints made to them and the resolution of such complaints, including the date of such resolution. Such written records shall be on file at the office of grantee. A grantee shall make available to grantor a written summary of such complaints and their resolution upon request.

Parental Control. Every grantee shall make available to any subscriber upon request a "lockout" device for blocking both video and audio portions of any channel(s) of programming entering the subscriber's premises. Such device shall be provided at a reasonable charge, except to the extent that Federal law specifically provides otherwise. A grantee may, however, require a reasonable security deposit for the use of such a device.

Service Area.

A grantee may not discriminate in the build-out of its cable system to a particular area of the City or provision of cable service to individual or groups of residents on the basis of race, creed, religion or economic condition. A grantee shall serve all areas of the City with populations of at least twenty (20) dwelling units per cable mile, including areas annexed subsequent to the grant of the franchise.

Line extension requirements.

For areas within the City limits but outside the franchise area, including areas annexed after the effective date of its franchise, a franchisee shall extend its trunk and distribution system to serve households desiring service without any construction charge (other than standard connection and drop charges as authorized herein), unless the franchisee demonstrates to the Governing Body's satisfaction evidenced by written decision that circumstances justify a specific charge, where (1) the new subscriber requesting service is located within one hundred twenty-five (125) feet from the termination of the cable system, or (2) the number of potential subscribers to be passed by such extension is equal to or greater than twenty (20) potential households per cable mile, or portion thereof, measured from any point on the system.

In circumstances where the factors requiring line extension do not exist as set forth in the foregoing paragraph, the franchisee shall on the request of the Governing Body 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 mile at the time of the request and the denominator equals twenty (20). 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.

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 Governing Body in advance; (2) send the Governing Body 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 which would then be owed. The franchisee shall report such calculations and refunds to the Governing Body by the end of January of the following year.

Except as Federal rate regulations may otherwise require, the franchisee shall not assess any additional cost for service drops of one hundred twenty-five (125) feet or less unless the franchisee demonstrates to the Governing Body's satisfaction, evidenced by written decision, that circumstances justify a specific charge. Where a drop exceeds one hundred twenty-five (125) feet in length, a franchisee may charge the subscriber for the difference between franchisee's actual costs associated with installing a one hundred twenty-five (125) 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.

Except as Federal regulations may otherwise require or otherwise approved by the City, all cables and wires shall be installed underground parallel to other utilities where such easements or space is available for use by the franchisee.

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 twenty-five (125) feet of the existing distribution system; (2) within thirty (30) 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 twenty-five (125) 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.

Because existing conditions can vary dramatically, franchisee may at 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.

Newly annexed areas. In such cases where mandatory extension of the cable system is required for areas newly annexed after the effective date of the franchise, but the technical capabilities of the then-existing cable system are such that the minimum technical performance standards required by this franchise or the FCC cannot be met, then the grantee shall be required to make such extension only if the grantee can earn a fair return (as measured by the grantee's weighted average cost of capital) on the incremental investment required combined with the overall investment base of the cable system within the boundaries of the franchise area.

Special agreements. Nothing herein shall be construed to prevent a grantee from serving areas not covered under this Section upon agreement with developers, property owners or residents.

Customer Service Reporting Requirements. The City may require upon reasonable request that a grantee periodically prepare and furnish to City annual reports and any other reasonable information relevant to the grantee's compliance with the customer service requirements of this Chapter measured on a quarterly basis.

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 principles of fairness and equal accessibility to all persons and the City to the extent they have a legitimate use for such capacity.

Technical Standards.

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 Governing Body in a manner consistent with Federal law.

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 outside plant 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.

Interconnection.

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.

Upon receiving the directive of the Governing Body 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.

The Governing Body 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 Governing Body. The Governing Body shall rescind the request if it finds that the franchisee has negotiated in good faith and the cost of interconnection would cause unreasonable increases in subscriber rates.

No interconnections shall take place without prior written approval of the Governing Body. 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.

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.

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.

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 or major extension is scheduled to commence, the franchisee shall provide the City 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 metropolitan St. Louis area, which shall include at least the following elements:

Design type, trunk and feeder design and number and location of hubs or nodes.

Distribution system — cable, fiber and equipment to be used.

Plans for standby power.

Longest amplifier cascade in system (number of amplifiers, number of miles, type of cable/fiber).

Design maps and tree trunk maps for the system. 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 that a revised plan is available for review by the City at a specific office located in the metropolitan St. Louis area, 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 Code or other applicable law.

Emergency Alert System. A franchisee shall comply with 47 U.S.C. Section 544(g) and all regulations issued pursuant thereto.

Section 630.380 Operation and Maintenance.

[Ord. No. 1681 §1(3.5), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]

Open Books And Records. Every grantee shall cooperate with the City with respect to City's administration of this Chapter and Code and any applicable franchise granted pursuant to it. Subject to the privacy provisions of the Cable Act, City shall have the right to inspect, upon three (3) business days' notice, during normal business hours, all books, records, maps, plans, financial statements, service complaint logs, performance test results and other existing like materials of a grantee that relate to the operation of the grantee's cable system and that are reasonably necessary to grantor's enforcement or administration of this Code or the grantee's franchise. A grantee shall not be required to maintain any books or records for franchise compliance purposes longer than three (3) years, except that financial records necessary to demonstrate compliance with the required cable franchise fee payments shall be kept for five (5) years. Upon request, the City will treat designated information disclosed by a grantee as confidential to the extent permissible under State and Federal law. All such review of a grantee's books and records shall be performed by an independent party if the City itself enters into the business as a competitor.

Communications With Regulatory Agencies. Copies of all petitions, applications, communications and reports submitted by a grantee to the FCC, Securities and Exchange Commission or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters directly affecting the cable system operations shall be made available contemporaneously to the City upon request. Copies of responses from the above regulatory agencies to a grantee likewise shall be made available promptly to the City upon request. If the City is specifically named in any such pleading or response, the City shall automatically be furnished a copy.

Annual Reports.

Upon request, a grantee shall make available to City, within ninety (90) days of the end of each of the applicable grantee's fiscal years during the term of this franchise, the following:

A revenue statement certified by a representative of the grantee showing the gross revenues of the grantee for the preceding fiscal year;

A current list of names and addresses of each officer and director and other management personnel of the grantee;

A copy of all documents that relate directly to the grantee's cable system that were filed with any Federal, State or local agencies during the preceding fiscal year and that were not previously filed with the City;

A statement of the grantee's current billing practices and charges;

A copy, if any, of the grantee's current subscriber service contract; and

A copy of annual reports to stockholders, if any, for operating company and parent company.

All of the above information shall not be required annually unless there is a change after the first (1st) filing.

City and its agents and representatives shall have authority to arrange for and conduct an audit during normal business hours of the books and records of grantee that are reasonably necessary for the enforcement of a franchise. A grantee shall first be given thirty (30) days' notice of the audit, the description of and purpose for the audit, and a description, to the best of City's ability, of the books, records and documents that City wants to review. The costs and expense of such audit shall be borne by the grantee if the audit reveals a discrepancy of two percent (2%) or more from the information related to the City.

Any review or audit of a grantee's books and records shall be performed by an independent party if the City itself enters into the business as a competitor to provide cable services.

Additional Reports And Assistance. Upon request of the City, a grantee shall add additional reports to the index which are reasonably necessary to the City's proper enforcement of this Chapter, Code or franchise. The City shall require such reports only through passage of a formal resolution of the City. In addition, upon request, a grantee shall cooperate and assist the City in interpreting and understanding any report required under this Chapter, Code or its franchise, including through the provision of explanatory graphs and/or charts.

Service Contract And Subscriber Information.

A grantee shall have authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under this Chapter and its franchise and to assure uninterrupted cable service to all of its subscribers; provided such rules, regulations, terms and conditions shall not be in conflict with the provisions of this Code, Federal, State and/or local law or any applicable rules and regulations.

Upon request, a grantee shall submit to City any subscriber contract form that it utilizes. If no written contract exists, a grantee shall file with the City a document completely and concisely stating the terms of the residential subscriber contract offered, specifically including the length of the subscriber contract. The length and terms of any subscriber contract shall be available for public inspection during normal business hours.

Section 630.390 Financial Provisions, Remedies, Procedures and Due Process.

[Ord. No. 1681 §1(3.6), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]

Cable Franchise Fee.

As compensation for grant of a franchise and in consideration of permission to use the rights-of-way of the City for the construction, operation, maintenance and reconstruction of a cable system and to defray the costs of franchise obligations, every grantee shall pay to the City on a quarterly basis throughout the term of its franchise a sum totaling five percent (5%) of the grantee's gross revenues.

To the extent grantee markets "bundled" services, including combinations of services that may be subject to an agreement and also a cable services franchise, grantee shall fairly reflect to the City an appropriate and reasonable division of services among the various services offered based on the actual value of each separate service. Whether or not a grantee separates services on a subscriber's bill, it will provide to the City the amounts upon which it will pay the communications service use fee and any other applicable taxes or fees based on the provision of communications service and the amounts upon which it will pay the cable service franchise fee. Should a grantee engage in billing practices that, in the determination of the City, do not fairly reflect an appropriate split of communications services and cable television services, the City will notify the grantee in writing of its determination. The parties will meet and discuss in good faith whether the billing practices result in an unfair payment of fees to the City. If the parties do not agree on an appropriate method of determining which charges are subject to communications service use fees and which are subject to the cable service franchise fee, the parties may subject the dispute to arbitration or may resort to other methods of dispute resolution, including litigation. Fees or taxes which are not paid on the appropriate division of bundled services receipts, when ultimately paid, will be subject to all interest and penalties provided by the applicable agreements. If grantee holds a communication services agreement, any fee that could be lawfully attributed to gross revenue or alternatively "gross receipts" under this Code shall be deemed to be subject to the higher fee.

Payments due City under this Section shall be computed quarterly, for the preceding quarter, as of March thirty-first (31st), June thirtieth (30th), September thirtieth (30th) and December thirty-first (31st). Each quarterly payment shall be due and payable no later than thirty (30) days after the dates listed in the previous sentence. Each payment shall be accompanied by a brief report by the grantee showing the basis for the computation and a "franchise fee worksheet" listing all of the sources of revenues attributable to the operation of the grantee's system.

Should any additional monies be due to the City as a result of information contained in the annual financial report of a grantee or by audit as permitted by this Chapter, the grantee shall pay such additional monies to the City within sixty (60) days after receipt of notice of same from the City.

In the event that any of the quarterly franchise fee payments are not timely made, a grantee shall also pay the City interest thereon at the then current prime rate. Said interest to be applied commencing with the thirtieth (30th) day after the end of the quarter and continuing until all such overdue sums, including interest, are paid.

No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further sums payable under the provisions of this Chapter, Code or applicable franchise. All amounts paid shall be subject to audit and recomputation by the City or its designee at any time upon reasonable notice and specification of the documents requested to be reviewed. City's right to audit, and the grantee's obligations to retain records related to the franchise fee audit, shall expire five (5) years from the date on which each franchise fee payment by the grantee is due.

The franchise fee does not include any tax, fee or assessment of general applicability (including any such tax, fee or assessment which is unduly discriminatory against cable operators or cable subscribers.

Security Fund. Each grantee may be required to maintain a security fund with the City to ensure compliance with this Chapter, Code and applicable franchise in an amount and in a manner as set forth in the grantee's franchise.

Bonds, Indemnification And Insurance. Each grantee shall maintain bonds and insurance with the City in amounts and in a manner as set forth in the grantee's franchise. Each grantee also shall be required to indemnify the City in a manner as set forth in Article I and in the grantee's franchise.

Remedies And Enforcement Procedure.

Whenever the City has reason to believe that a grantee has violated any provision of this Code or its franchise, including the customer service and telephone availability requirements, the City shall first notify the grantee in writing of the violation and demand correction within a reasonable time, which shall not be less than thirty (30) days. If the grantee fails to demonstrate to the reasonable satisfaction of the City that no violation exists, or if the grantee fails to correct the violation within the time prescribed, or if the grantee is unable to correct the violation and fails to commence corrective action within the time prescribed and to diligently remedy such violation thereafter, the grantee shall then be given written notice of not less than thirty (30) days of a public hearing to be held before the Board of Aldermen. Said notice shall indicate with reasonable specificity the violation alleged to have occurred. This procedure shall apply to all alleged Code or franchise violations, including those in which grounds for revocation are considered.

At the public hearing, the Board of Aldermen shall hear and consider all relevant evidence and thereafter render findings and a decision based upon the evidence.

In the event the City finds that the grantee has corrected the violation or promptly commenced correction of such violation after notice thereof from the City and is diligently proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

In the event the City finds that a violation exists and that the grantee has not corrected the same in a satisfactory manner or did not promptly commence and diligently proceed to correct the violation, the City may impose penalties and/or liquidated damages from the security fund, as follows:

For system construction schedule violations including, but not limited to, provisions relating to initial construction schedules and system upgrade construction schedule, five hundred dollars ($500.00) per day of non-compliance;

For all other violations, two hundred fifty dollars ($250.00) per day per violation.

The City shall provide the grantee with written notice of its decision together with a written finding of fact explaining the basis for such a decision.

If the City elects to assess penalties or liquidated damages, then such election shall constitute the City's exclusive remedy for a period of sixty (60) days. Thereafter, if the grantee remains in non-compliance, the City may pursue any other available remedy, including franchise revocation.

In the event that a franchise is cancelled or terminated by reason of the default of the grantee, the security fund deposited pursuant to the franchise shall remain in effect and available to the City until all pending claims or penalties are resolved or settled, after which point any remaining amounts in the security fund shall revert to the possession of the grantee.

The rights reserved to the City with respect to the security fund are in addition to all other rights of City, whether reserved by this Code, applicable franchise, or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right City may have.

The foregoing provisions shall not be deemed to preclude the City from obtaining any other available remedies for repeated violations of the same general type, whether remedied or not.

Grounds For Revocation. In addition to any rights in this Code or applicable franchise, the City reserves the right to utilize the above-described enforcement procedure to revoke a franchise, and all rights and privileges pertaining thereto, in the event that any of the following occur, and the City and a grantee are not able to mutually agree upon a cure or alternate remedy:

The grantee substantially violates any material provision of this Code or its franchise;

The grantee practices an act of fraud or deceit upon the City; or

The grantee becomes insolvent or is adjudged bankrupt; provided than any remedy imposed pursuant to this Subsection shall not conflict with the requirements of the Federal Bankruptcy Code or other applicable law.

Right Of Appeal.

Upon the imposition of a penalty or revocation decision, a grantee shall have a period of one hundred twenty (120) days subsequent to the date of the formal adoption of the decision by the Board of Aldermen within which to file an appeal with a court of competent jurisdiction.

During any such appeal period, the franchise shall remain in full force and effect.

Section 630.400 Foreclosure, Receivership and Abandonment.

[Ord. No. 1681 §1(3.7), 12-17-2001]

Foreclosure. Upon the foreclosure or other judicial sale of all or a part of the cable system, or upon the termination of any lease covering all or part of the cable system, a grantee shall notify the City of such fact and such notification shall be treated as a notification that a change in control of the grantee has taken place, and the provisions of this Code governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred.

Receivership. The City shall have the right to cancel a franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of a grantee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:

Within one hundred twenty (120) days after its election or appointment, the receiver or trustee has fully complied with all the provisions of the franchise and remedied all defaults thereunder; and

Such receiver or trustee, within said one hundred twenty (120) days, has executed an agreement, duly approved by a court having jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Code and applicable franchise.

Section 630.410 Purchase of System.

[Ord. No. 1681 §1(3.8), 12-17-2001]

If a renewal or extension of a franchise is denied without further right of appeal or a franchise is lawfully terminated with all rights of appeal exhausted, the City may acquire ownership of the cable system or effect a transfer of ownership of the cable system to another person, any such acquisition or transfer shall be in accordance with and to the extent permitted by 47 U.S.C. Section 547 as follows:

Upon revocation of a franchise, such valuation shall not include any sum attributable to the value of the franchise itself and plant and property shall be valued according to its book value at the time of revocation or the cable system's initial cost less depreciation and salvage, whichever of the two (2) is lower.

At the expiration of a franchise, such valuation shall be at fair market value, exclusive of the value attributed to the franchise itself.

Section 630.420 Sale or Transfer of Franchise.

[Ord. No. 1681 §1(3.9), 12-17-2001]

A grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, an interest in or control of a franchise or cable system without the prior consent of the City, which consent shall not be unreasonably denied or delayed and may be denied only upon a good faith finding by the City that the proposed transferee lacks the legal, technical or financial qualifications to consummate the transaction and operate the cable system so as to perform its obligations under the franchise. This Section shall not apply to sales of property or equipment in the normal course of business. Consent from the City shall not be required for a transfer in trust, mortgage or other instrument of hypothecation, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership or other entity controlling, controlled by, or under common control with a grantee.

The following events shall be deemed to be a sale, assignment or other transfer of an interest in or control of a franchise or cable system requiring compliance with this Section:

The sale, assignment or other transfer of all or a majority of a grantee's assets in the City;

The sale, assignment or other transfer of capital stock or partnership, membership or other equity interests in a grantee by one (1) or more of its existing shareholders, partners, members or other equity owners so as to create a new controlling interest in grantee;

The issuance of additional capital stock or partnership membership or other equity interest by a grantee so as to create a new controlling interest in a grantee; and

A grantee's agreement to transfer management or operation of the grantee or the system to an unaffiliated entity so as to create a new controlling interest in the grantee.

The term "controlling interest", as used herein, means majority equity ownership of a grantee.

A transfer solely for security purposes such as the grant of a mortgage or security interest, including the pledge or grant of a mortgage or security interest to lenders of a grantee's assets, including, but not limited to, the franchise, such as in a transaction commonly known as an "initial public offering" shall not be deemed to be a sale, assignment or other transfer of an interest in or control of a franchise or cable system and thus shall not require compliance with this Section.

In the case of any sale or transfer of ownership of an interest in or control of a franchise or cable system, the City shall have one hundred twenty (120) days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and the requirements of this Code. If the City fails to render a final decision on the request within one hundred twenty (120) days after receipt by the City of all required information, such request shall be deemed granted unless the requesting party and the City agree to an extension of the one hundred twenty (120) day period.

The City reserves any legal right it has under applicable law to require a grantee to pay all costs and expenses incurred by the City in connection with the sale, assignment or transfer of a franchise including, but not limited to, the City's costs of reviewing the qualifications of any proposed transferees. Such reimbursement shall not be considered a franchise fee.

Section 630.430 Rights of Individuals Protected.

[Ord. No. 1681 §1(3.10), 12-17-2001]

Discriminatory Practices Prohibited. A grantee shall not deny cable service, deny access or otherwise discriminate against subscribers, programmers or general citizens on the basis of income level, race, color, religion, national origin, sex or age. Every grantee shall strictly adhere to the equal employment opportunity requirements of State and Federal law. Every grantee shall comply at all times with all other applicable Federal, State and local laws and all executive and administrative orders relating to non-discrimination.

Subscriber Privacy. Every grantee shall at all times comply with the Federal subscriber privacy requirements codified at 47 U.S.C. Section 551.

Section 630.440 Miscellaneous Provisions.

[Ord. No. 1681 §1(3.11), 12-17-2001]

Rate Regulation. The City reserves the right to regulate rates for basic cable service and any other services offered over a cable system to the extent permitted by Federal or State law. A grantee shall be subject to the rate regulation provisions provided for herein and those of the Federal Communications Commission (FCC) at 47 C.F.R., Part 76.900, Subpart N. The City shall follow the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part 76.900, Subpart N.

Rights Reserved To Grantor. Upon either final non-appealable determination of non-renewal or revocation of a franchise, grantor shall have discretion to permit a grantee by mutual consent to continue to operate the cable system for an extended period of time agreed upon by the parties. Any such operation of the system by a grantee shall be in accordance with the terms and conditions of this Chapter or franchise and shall provide the regular subscriber service and any and all of the services that may be provided at that time.