[CC 1995 §620.010; Ord. No. 312 §1, 9-11-1995]
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.
[CC 1995 §620.020; Ord. No. 312 §2, 9-11-1995]
For the purpose 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 to 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.
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 Crystal Lake Park, 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.
"Franchise transfer" shall mean any transaction
in which:
Any ownership or other right, title or interest of more than
ten percent (10%) in a franchisee or its cable system is transferred,
sold, assigned, leased, sublet, mortgaged or otherwise disposed of
or encumbered directly or indirectly, voluntarily or by foreclosure
or other involuntary means, in whole or in part; or
There is any change in, or substitution of, or acquisition or
transfer of control of the franchisee or any person which has more
than a ten percent (10%) interest in a franchisee or has responsibility
for or control over a franchisee's operations or over the system;
or
The rights or obligations held by the franchisee under the franchise
are transferred, directly or indirectly, to another person.
"Control" 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; or
Assignment of the franchise to another entity wholly owned by
the franchisee or the owners of the franchisee, provided an owner
of the franchisee has guaranteed its obligations under the franchise
agreement and the assignment does not affect such guaranty, and the
franchisee and guarantor(s) provide signed written notice of such
assignment at least thirty (30) days in advance which demonstrates
the conditions of this exception have been satisfied.
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 provision of cable service over a cable
system, including the studios and other facilities associated therewith,
or by the provision of other communications service 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; fees or payments received from
programmers for carriage of programming on the system (which does
not include contributions to join marketing efforts); revenues from
rentals or sales of converters or other equipment; studio rental and
production fees; advertising revenues; revenues from program guides;
revenues from the sale or carriage of other communications services,
including information services and bypass services; and revenues from
home shopping and bank-at-home channels. "Gross revenues" shall not include any franchise fees hereunder or 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 person hereunder or any proceeds from the sale or exchange
of the system. "Gross revenues" goods and services
which are not provided over the system, 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. Conditions 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 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 other programming services
as contrasted with the receipt thereof in the capacity of a subscriber.
[CC 1995 §620.030; Ord. No. 312 §3, 9-11-1995]
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. No person may construct, operate or
maintain a cable system or provide a cable service over a cable system
within the City without a franchise granted by the City authorizing
such activity. No person may construct, operate or maintain communications
facilities or provide other communications services over such facilities
within the City without authorization from the City. 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 or other communications
facilities 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 or other communications facilities
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 or other communications facilities 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 or other communication
services over a cable system.
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 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. §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 implicit rights
other than those mandated by Federal, State or local law. A franchise
may expressly grant authority to provide other communications services
in lieu of issuance of a separate additional license agreement.
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 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 Term.
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 or other communications
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) days 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 Anticompetitive 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.
[CC 1995 §620.040; Ord. No. 312 §4, 9-11-1995]
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 a 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 a 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
a RFP, it shall evaluate all timely responses.
2.
In evaluating an application for a franchise including a response
to a 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 a 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 Section 620.040(B) 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 submit 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
is 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.
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 subpoena 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 person that
owns or controls or is owned or controlled by, or under common control
with, such applicant directly or indirectly. 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 thirty (30) 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 Section 620.040(D).
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. A 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 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 anticompetitive
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 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 would 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 make its decision
in conformity with that Statute. If the request for modification is
not submitted 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 thirty (30) days after the application is filed, subsequent to
preparation of a modified written franchise agreement by the City
and signature thereof by the applicant.
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
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, and on the potential impact of the franchise transfer
on subscriber rates and service. At a minimum, the following information
must be included in the application:
(1)
All information and forms required under Federal law;
(2)
All information described in Section 620.040D(1) — (5), (9), (11), (13) — (15) of this Chapter, regarding the transferee instead of the applicant, and regarding the franchise transfer rather than initial or renewal franchise;
(3)
A description of any business relationship or transactions of
any kind, past, present or anticipated, between the franchisee, or
its owners or affiliates, and the transferee, or its owners or affiliates,
other than the proposed transaction;
(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, indicating how the debt-equity ratio
of the system will change in the course of the transaction; what entities
will be liable for repayment of any debt incurred; what interest,
payment schedule, and other terms or conditions will apply to any
debt financing; any debt coverages or financial ratios any potential
transferees will be required to maintain over the franchise term if
the proposed transaction is approved; what financial resources would
be available to the system under the control of the proposed transferee;
(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 it agents may inquire into the
qualifications of the prospective transferee and such other matters
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 the
franchisee is in compliance with its franchise agreement and this
Chapter and, if not, the proposed transferee's commitment to cure
such non-compliance; and whether operation by the transferee on approval
of the franchise transfer would adversely affect the City's interest
under this Chapter, the franchise agreement, other applicable law
or the public interest, or make it less likely that the future cable-related
needs and interests of the community would be satisfied.
b.
The City shall make its determination in accordance with any time
limits imposed by Federal law, including under 47 U.S.C. Section 537(e).
c.
Any purported franchise transfer made without the Board of Aldermen's
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 Section 620.040(E) 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 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.
I.
Intergovernmental Cooperation. By resolution of the Board
of Aldermen, any part or all of the process established by this Section
may be conducted in concert with other political subdivisions served
or to be served by the applicant.
[CC 1995 §620.050; Ord. No. 312 §5, 9-11-1995]
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 as 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 620.120(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 620.120(D).
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.
In any permit so issued, such officials may impose such conditions
and regulations as a condition of the granting of the permit as are
reasonably necessary for the purpose of protecting any structures
or facilities in the public 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.
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,
and 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
nuisances 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 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 proper 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 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 620.050E(2)). A franchisee must build and maintain its system so that it can extend services to households desiring service located outside the franchise area in accordance with Section 620.050E(1) through (4). Connections to commercial customers shall be governed by Section 620.050E(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 620.050E(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 six (6) potential households per quarter mile measured from any point on the system.
b.
In the event that the requirements set forth in the foregoing Subsection (E)(1)(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 six (6). 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.
c.
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.
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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 franchise 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:
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:
a.
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;
b.
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 fifty (150) feet) is required; or
c.
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, commercial customers
must pay all reasonable costs (including time and materials) of connection
at the election of franchisee.
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)
All trunk and distribution amplifiers shall be bench-tested
to verify compliance with manufacturer's specifications.
(3)
No component shall be used in the system which fails to meet
manufacturer's specifications. A franchisee shall maintain in the
metropolitan St. Louis area 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 submitted to the City Clerk for review by the City. The franchisee
shall have the obligation, without further notice from City, to take
corrective action if any system components are not operating as expected.
Unless the City determines test results are not adequate to demonstrate
system compliance with the standards described above and objects within
three (3) working days of receipt of the test results, the portion
of the system covered by the tests will be deemed approved for subscriber
connection.
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 filed with the
City Clerk within thirty (30) days of each test. If the location fails
to meet performance specifications, the franchisee, without requirement
of additional notice or request from City, shall take corrective action,
retest the location and advise the City of the action taken and results
achieved by writing filed with the City Clerk. 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 tests 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 and by notifying those persons most likely
to be affected by the work in at least two (2) of the following ways:
by telephone, in person, by mail, by distribution of flyers, by publication
in local newspapers, or in any other manner reasonably calculated
to provide adequate notice. 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 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.
[CC 1995 §620.060; Ord. No. 312 §6, 9-11-1995]
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, 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 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 headends 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.
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In addition, the design and construction of a system shall include
modulators, antennae, amplifiers and other electronics that permit
and area capable of passing through the signal received at the headend
with minimal alteration or deterioration.
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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 metropolitan
St. Louis area, 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 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 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.
[CC 1995 §620.070; Ord. No. 312 §7, 9-11-1995]
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 metropolitan St. Louis area 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 sufficient financial records governing
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 open to public inspection
in accordance with applicable FCC rules and regulations.
B.
Communication With Regulatory Agencies. A franchisee shall
file with the City Clerk 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. 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. Public access
to such reports received by the City Clerk 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 with the City Clerk, which
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 provide the City with its current schedule of charges.
4.
General reports. Each franchisee shall prepare and
furnish to the City Clerk, as 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
metropolitan St. Louis area:
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 acknowledgement, 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 metropolitan St. Louis
area, 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.
[CC 1995 §620.080; Ord. No. 312 §8, 9-11-1995]
A.
Telephone And Office Availability.
1.
Each franchisee shall maintain an office at a convenient location
to subscribers, not necessarily within the franchise area, 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
within twenty-four (24) hours or prior to the end of the next business
day, whichever is earlier. 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 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 change 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.
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; and
f.
Billing and complaint procedures, including the address and telephone
number of the local franchise authority's cable office.
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.
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 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-quarters of one percent (0.75%) per month.
4.
A franchisee must notify the subscriber that he/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.
9.
Credits for service shall be issued no later than the subscriber's
next billing cycle after the determination that the credit is warranted.
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' notice, 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 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.
Parental Control. A franchisee shall provide parental control
devices to all subscribers who wish to be able to block the video
or audio portion of any objectionable channel or channels or programming
from the cable service entering the subscriber's home. This control
option shall be provided at no charge except as Federal law otherwise
provides.
[CC 1995 §620.090; Ord. No. 312 §9, 9-11-1995]
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.
[CC 1995 §620.100; Ord. No. 312 §10, 9-11-1995]
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 or provision of other communications
services 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 communications services
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. Separate percentages
may be identified for gross revenues derived from cable services and
gross revenues derived from other communications services.
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 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 metropolitan St. Louis area. 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 620.100(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 communications
services over the cable system for which charges are assessed to subscribers
but not received by the franchisee.
[CC 1995 §620.110; Ord. No. 312 §11, 9-11-1995]
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 Subsection (F)(1), 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, trade mark, 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.
[CC 1995 §620.120; Ord. No. 312 §12, 9-11-1995]
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 it 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 failure 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 620.120(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 620.120(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 specified 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 a 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.
[CC 1995 §620.130; Ord. No. 312 §13, 9-11-1995]
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.
[CC 1995 §620.140; Ord. No. 312 §14, 9-11-1995]
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 in action 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, 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 antennae,
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.
No franchisee shall install equipment to provide basic cable service
or other programming services (not including premium or pay-per-view
programming) in a compressed or digitized form unless otherwise authorized
in writing by the Board of Aldermen. The Board of Aldermen will not
unreasonably withhold consent to install such equipment but may adopt
requirements as reasonably necessary to protect the public interest,
including by ensuring that 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 Saturdays, Sundays and legal holidays
shall be excluded in the computation.
