[Code 2005 § 102-31]
A.
The City, pursuant to applicable federal and state law, is authorized
to grant one or more nonexclusive franchises to construct, operate,
maintain and reconstruct cable television systems within the City
limits.
B.
The City Commission finds that the development of cable television
systems has the potential of having great benefit and impact upon
the residents of the City. Because of the complex and rapidly changing
technology associated with cable television, the City Commission further
finds that the public convenience, safety and general welfare can
best be served by establishing regulatory powers which should be vested
in the City or such persons as the City shall designate. It is the
intent of this article and subsequent amendments to provide for and
specify the means to attain the best possible cable television service
to the public and any franchises issued pursuant to this article shall
be deemed to include this finding as an integral part thereof.
[Code 2005 § 102-32]
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning. Words not defined
shall be given their common and ordinary meaning:
Any service tier which includes the retransmission of local
television broadcast signals.
Title VI of the Communications Act of 1934 as amended by
the Cable Communications Policy Act of 1984, 47 USC 521—611,
as amended by the Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of
1996, Pub. L. No. 104-4581 all as may, from time to time, be amended,
and any future cable television legislation.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
rights-of-way;
A facility of a common carrier that is subject, in whole or
in part, to the provisions of Title II of the Cable Act except that
such facility shall be considered a cable system (other than for purposes
of § 621(c) of the Cable Act) to the extent that such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services;
An open video system that complies with 47 USC 653; or
Any facilities of any electric utility used solely for operating
its electric utility system.
A portion of the electromagnetic frequency spectrum that
is used in a cable system and which is capable of delivering a television
channel as defined by the Federal Communications Commission.
An initial authorization, or renewal thereof, issued by the
City, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise,
which authorizes the construction or operation of a cable system.
A franchise granted pursuant to this article, containing
the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
Any tax, fee or assessment of any kind imposed by the City
or other governmental entity on a grantee or cable subscriber, or
both, solely because of their status as such. The term "franchise
fee" does not include:
Any tax, fee, or assessment of general applicability, including
any such tax, fee, or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee, or assessment
which is unduly discriminatory against cable operators or cable subscribers;
Capital costs (including grants) that are required by the franchise
agreement to be incurred by the cable operator for educational or
governmental access facilities;
Requirements or charges incidental to the awarding or enforcing
of the franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages;
or
Any fee imposed under Title 17 of the United States Code.
Any person receiving a franchise pursuant to this article
and its agents, employees, officers, designees, or any lawful successor,
transferee or assignee.
The City, as represented by the City Commission or any delegate
acting within the scope of its jurisdiction.
All revenues received directly or indirectly by the grantee
from or in connection with the operation of the system to provide
cable services pursuant to a franchise granted under this article,
except it shall not include bad debt, sales tax or other taxes or
charges imposed on grantee in addition to its franchise obligations
and collected for direct pass-through to state or federal government.
Specifically included within gross annual revenues are all revenues
generated by cable services offered over the cable system including,
but not limited to, services such as internet services, multimedia
programming, data transmission, digital cable, video on demand, advertising
generated from traditional cable programming, home shopping; provided,
however, that to the extent any of the foregoing services are determined
not to be "cable services" under applicable federal law, revenues
received from such services shall not be included in "gross annual
revenues."
The area of the City that will receive cable service initially,
as set forth in any franchise agreement.
The connection of the system to subscribers' terminals,
and the provision of cable service.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, the term "normal business
hours" shall include some evening hours at least one night per week
and/or some weekend hours.
Those service conditions that are within the control of the
grantee. Those conditions that are not within the control of the grantee
include, but are not limited to, natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather
conditions and significant legislative or regulatory requirements.
Those conditions which are ordinarily within the control of the grantee
include, but are not limited to, special promotions, pay-per-view
events, regular peak or seasonal demand periods, and maintenance or
upgrade of the system.
Any natural person or any association, firm, individual,
partnership, joint stock company, joint venture, trust, corporation,
limited liability company or other legally recognized entity, private
or public, whether for-profit or not-for-profit.
Any section, subsection, or provision of this article.
The entire geographic area within the City as it is now constituted
or may in the future be constituted, unless otherwise specified in
the franchise agreement.
The loss of picture or sound on one or more cable channels
affecting at least 10% of the subscribers on the system.
Each of the following that have been dedicated to the public
or are hereafter dedicated to the public and maintained under public
authority or by others and located within the City limits: Streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public property and areas that the grantor
shall franchise to be included within the definition of street from
time to time.
Any person who or which lawfully elects to subscribe to,
for any purpose, cable service provided by the grantee by means of
or in connection with the cable system and who pays the charges therefor,
except such persons or entities authorized to receive cable service
without charge as described in the franchise agreement.
[Ord. No. 12-18-00-3, § 7, 12-18-2000; Code 2005 § 102-33]
A.
This article shall be construed in the manner consistent with all
applicable federal and state laws.
B.
In the event that the state or federal government discontinues preemption
in any area of cable communications over which it currently exercises
jurisdiction in such manner as to expand rather than limit municipal
regulatory authority, the grantor may, if it so elects, adopt rules
and regulations in these areas to the extent permitted by law.
C.
This article shall apply to all franchises granted or renewed after
the effective date of Ordinance No. 12-18-00-3. It shall further apply
to the extent permitted by applicable federal or state law to all
existing franchises granted prior to the effective date of Ordinance
No. 12-18-00-3.
D.
The grantee's rights are subject to the police powers of the
City to adopt and enforce ordinances necessary to the health, safety
and welfare of the public. The grantee shall comply with all applicable
general laws and ordinances enacted by the City pursuant to that power.
E.
The grantee shall not be relieved of its obligation to comply with
any of the provisions of this article or any franchise granted pursuant
to this article by reason of any failure of the City to enforce prompt
compliance.
F.
This article and any franchise granted pursuant to this article shall
be construed and enforced in accordance with the substantive laws
of the state.
[Code 2005 § 102-34]
A.
The grantor may appoint a cable committee to advise the City on matters
affecting subscribers and cable service.
B.
The grantee shall keep the cable committee apprised of program changes,
alternative programming, rate changes and other changes on policies,
procedures and services affecting subscribers.
C.
The cable committee shall be advisory to the City and shall not have
authority to direct the grantee. The grantee shall, however, take
into consideration the views and information provided by the cable
committee and shall provide written response to requests of the committee
explaining the action, or inaction, of the grantee.
D.
The cable committee shall adopt rules and procedures to define the
committee's functions and responsibilities, subject to City Commission
approval.
[Code 2005 § 102-35]
In the event of a conflict between any provision of this article
and a franchise agreement entered pursuant to it, the provisions of
this article shall control, except as may be specifically otherwise
provided in the franchise agreement.
[Code 2005 § 102-36]
If any provision of this article is held by any court or by
any federal or state agency of competent jurisdiction to be invalid
as conflicting with any federal or state law, rule or regulation now
or hereafter in effect, or is held by such court or agency to be modified
in any way in order to conform to the requirements of any such law,
rule or regulation, such provision shall be considered a separate,
distinct, and independent part of this article, and such holding shall
not affect the validity and enforceability of all other provisions
hereof. In the event that such law, rule or regulation is subsequently
repealed, rescinded, amended or otherwise changed, so that the provision
of this article which had been held invalid or modified is no longer
in conflict with such law, rule or regulation, such provision shall
thereupon return to full force and effect and shall thereafter be
binding on the grantor and the grantee, provided that the grantor
shall give the grantee 30 days' written notice of such change
before requiring compliance with such provision or such longer period
of time as may be reasonably required for the grantee to comply with
such provision.
[Code 2005 § 102-56]
It shall be unlawful for any person to construct, install or
operate a cable television system in the City within any street without
a properly granted franchise awarded pursuant to the provisions of
this article.
[Code 2005 § 102-57]
A franchise granted by the City under the provisions of this
article shall encompass the following purposes:
(1)
To engage in the business of providing cable service, and such other
services as may be permitted by the franchise agreement.
(2)
To erect, install, construct, repair, rebuild, reconstruct, replace,
maintain, and retain, cable lines, related electronic equipment, supporting
structures, appurtenances, and other property in connection with the
operation of a cable system in, on, over, under, upon, along and across
streets or other public places within the designated service area.
(3)
To maintain and operate such franchise properties for the origination,
reception, transmission, amplification, and distribution of television
and radio signals for the delivery of cable services and any other
services permitted by the franchise agreement.
(4)
To set forth the obligations of a grantee under the franchise agreement.
[Code 2005 § 102-58]
A.
A franchise granted under this article shall be for a term, not to
exceed 25 years, established in the franchise agreement, commencing
with the grantor's adoption of an ordinance or resolution authorizing
the franchise.
B.
A franchise granted under this article shall be renewed by the grantee
pursuant to the provisions of applicable state and federal law and
of this article and including § 626 of the Cable Act.
[Code 2005 § 102-59]
Any franchise shall be valid within all the territorial limits
of the City, including the service area, and within any area annexed
to the City during the term of the franchise, unless otherwise specified
in the franchise agreement.
[Code 2005 § 102-60]
The grantee shall not sell, transfer, lease, assign, sublet
or dispose of, in whole or in part, either by forced or involuntary
sale, or by ordinary sale, consolidation or otherwise, the franchise
and/or cable system or any of the rights or privileges granted by
the franchise, other than an entity controlling, controlled by, or
under common control with the grantee, without the prior consent of
the City Commission which consent shall not be unreasonably denied
or delayed and shall be denied only upon a good faith finding by the
City that the proposed transferee lacks the legal, technical or financial
qualifications to perform its obligations under the franchise agreement.
Any attempt to sell, transfer lease, assign or otherwise dispose of
the franchise and/or cable system without the consent of the City
Commission shall be null and void. No consent from the City shall
be required for a transfer in trust, mortgage, or other instrument
of hypothecation, in whole or in part, to secure an indebtedness.
[Code 2005 § 102-61]
A.
If, subject to the provisions of the Cable Act, a renewal of a franchise
is denied, the City may purchase to the extent permitted by local
law and upon payment to the grantee of the cable systems' fair
market value as a going concern, exclusive of any value allocated
to the franchise itself, that portion of grantee's cable system
serving the City.
B.
Subject to the Cable Act, if a franchise is revoked for cause, the
City may, to the extent permitted by local law, acquire that portion
of the cable system serving the City upon payment of an equitable
price.
C.
Subject to the Cable Act, the City reserves the right under the franchise,
in accordance with article one, § 11 of the City Charter,
to purchase the physical property and equipment of the grantee used
by the grantee in its operation under the franchise at any time during
or at the end of such franchise which property and equipment are then
in service at the true value of such property and equipment.
[Code 2005 § 102-62]
A.
The grantee shall design, construct and maintain the cable television
system to have the capability to pass every dwelling unit in the service
area, subject to any line extension requirements of the franchise
agreement.
B.
After service has been established by activating trunk and/or distribution
cables for any part of the service area, the grantee shall provide
cable service to any requesting subscriber within that service area
within 30 days from the date of request, provided that the grantee
is able to secure all rights-of-way necessary to extend service to
such subscriber within such thirty-day period on reasonable terms
and conditions.
[Code 2005 § 102-63]
Any franchise granted shall be nonexclusive. The City specifically
reserves the right to grant, at any time, such additional franchises
for a cable television system or any component thereof, as it deems
appropriate, subject to applicable state and federal law, provided,
however, that no franchise shall be granted on terms materially less
burdensome or more favorable than any other franchise granted under
this article.
[Code 2005 § 102-64]
A.
The grantor may grant one or more franchises for a service area.
The grantor may, in its sole discretion, limit the number of franchises
granted, based upon, but not necessarily limited to, the requirements
of applicable law and specific local considerations; such as:
(1)
The capacity of the public rights-of-way to accommodate multiple
fiber and/or coaxial cable in addition to the cables, conduits and
pipes of the utility systems, such as electrical power, telephone,
gas and sewerage.
(2)
The impact on the community of having multiple franchises.
(3)
The disadvantages that may result from cable system competition,
such as the requirement for multiple pedestals on residents'
property, and the disruption arising from numerous excavations of
the rights-of-way.
(4)
The financial capabilities of the applicant and its guaranteed commitment
to make necessary investment to erect, maintain and operate the proposed
system for the duration of the franchise term.
B.
Each grantee awarded a franchise to serve the entire City shall offer
service to all residences in the City, in accordance with construction
and service schedules mutually agreed upon between the grantor and
the grantee, and consistent with applicable law.
C.
Developers of new residential housing with underground utilities
shall provide conduit to accommodate cables for at least two cable
systems in accordance with the provisions of this chapter.
D.
Grantor may require that any new grantee be responsible for its own
underground trenching and the costs associated therewith, if, in the
grantor's opinion, the rights-of-way in any particular area cannot
feasibly and reasonably accommodate additional cables.
E.
Any additional franchise granted by the City to provide cable service
in the City in which a franchise has already been granted and where
an existing grantee is providing service shall require the new grantee
to provide service throughout its service area within a reasonable
time and in a sequence which does not discriminate against lower income
residents.
[Code 2005 § 102-65]
Any person desiring an initial franchise for a cable television system shall file an application with the City. A reasonable nonrefundable application fee established by the City shall accompany the application. Such application fee shall not be deemed to be "franchise fees" within the meaning of § 622 of the Cable Act (47 USC 542), and such payments shall not be deemed to be "payments in kind" or any involuntary payments chargeable against the compensation to be paid to the City by the grantee pursuant to section § 18-22 and applicable provisions of a franchise agreement, or part of the compensation to be paid to the City by the grantee pursuant to § 18-22 and applicable provisions of a franchise agreement. An application for an initial franchise for a cable television system shall contain, where applicable:
(1)
A statement as to the proposed franchise and service area.
(2)
Resume of prior history of applicant, including the legal, technical
and financial expertise of applicant in the cable television field.
(3)
List of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled by each
shareholder, if a corporation.
(4)
List of officers, directors and managing employees of applicant,
together with a description of the background of each such person.
(5)
The names and addresses of any parent or subsidiary of applicant
or any other business entity owning or controlling applicant in whole
or in part, or owned or controlled in whole or in part by applicant.
(6)
A current financial statement of the applicant verified by a certified
public accountant audit or otherwise certified to be true, complete
and correct to the reasonable satisfaction of the City.
(7)
Proposed construction and service schedule.
(8)
Any additional information that the City deems applicable.
[Code 2005 § 102-66]
A.
Upon receipt of any application for an initial franchise, the City
Manager shall prepare a report and make recommendations respecting
such application to the City Commission.
B.
A public hearing shall be set prior to any initial franchise grant,
at a time and date approved by the City Commission. Within 30 days
after the close of the hearing, the City Commission shall make a decision
based upon the evidence received at the hearing as to whether or not
the franchise should be granted, and, if granted subject to what conditions.
The City Commission may grant one or more initial franchises or may
decline to grant any franchise.
[Code 2005 § 102-67]
Franchise renewals shall be in accordance with applicable law
including, but not necessarily limited to § 626 of the Cable
Act. The grantor and the grantee, by mutual consent, may enter into
renewal negotiations at any time during the term of the franchise.
[Code 2005 § 102-68]
Except as otherwise provided in the franchise agreement, the
grantee shall maintain a local office or offices to provide the necessary
facilities, equipment and personnel to comply with the following consumer
protection standards under normal operating conditions:
(1)
Cable system office hours and telephone availability:
a.
The grantee will maintain a local, toll-free or collect call telephone
access line which will be available to its subscribers 24 hours a
day, seven days a week.
1.
Trained grantee representatives will be available to respond to customer
telephone inquiries during normal business hours.
2.
After normal business hours, the access line may be answered by a
service or an automated response system, including an answering machine.
Inquiries received after normal business hours must be responded to
by a trained grantee representative on the next business day.
b.
Under normal operating conditions, telephone answer time by a customer
representative, including wait time, shall not exceed 30 seconds when
the connection is made. If the call needs to be transferred, transfer
time shall not exceed 30 seconds. These standards shall be met no
less than 90% of the time under normal operating conditions, measured
on a quarterly basis.
c.
The grantee will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
of this section unless a historical record of complaints indicates
a clear failure to comply.
d.
Under normal operating conditions, the customer will receive a busy
signal less than 3% of the time.
e.
Customer service center and bill payment locations will be open at
least during normal business hours and will be conveniently located.
(2)
Installations, outages and service calls. Under normal operating
conditions, each of the following four standards will be met no less
than 95% of the time measured on a quarterly basis:
a.
Standard installations will be performed within seven business days
after an order has been placed. Standard installations are those that
are located up to 125 feet from the existing distribution system.
b.
Excluding conditions beyond the control of the grantee, the grantee
will begin working on "service interruptions" promptly and in no event
later than 24 hours after the interruption becomes known. The grantee
must begin actions to correct other service problems the next business
day after notification of the service problem.
c.
At the subscriber's request, the "appointment window" alternatives
for installations, service calls, and other installation activities
will be within a two-hour to four-hour time block during normal business
hours. The grantee may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.
d.
The grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
e.
If the grantee's representative is running late for an appointment
with a customer and will not be able to keep the appointment as scheduled,
the customer will be contacted. The appointment will be rescheduled,
as necessary, at a time that is convenient for the customer.
(3)
Communications between the grantee and cable subscribers:
a.
Notifications to subscribers.
1.
The grantee shall provide written information on each of the following
areas at the time of installation of service, at least annually to
all subscribers, and at any time upon request:
i.
Products and services offered;
ii.
Prices and options for programming services and conditions of
subscription to programming and other services;
iii.
Installation and service maintenance policies;
iv.
Instructions on how to use the cable service;
v.
Channel positions programming carried on the system; and
vi.
Billing and complaint procedures, including the address and
telephone number of the City's office.
2.
Subscribers will be notified of any changes in rates, programming
services or channel positions as soon as possible through announcements
on the cable system and in writing. Notice must be given to subscribers
a minimum of 30 days in advance of such changes if the change is within
the control of the grantee. In addition, the grantee shall notify
subscribers 30 days in advance of any significant changes in the other
information required by the preceding subsection.
b.
Billing.
1.
Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including optional
charges, rebates and credits.
2.
In case of a billing dispute, the grantee must respond to a written
complaint from a subscriber within 30 days.
d.
Credits. Credits for service will be issued no later than the subscriber's
next billing cycle following the determination that a credit is warranted.
[Code 2005 § 102-69]
The City reserves the right to regulate rates for basic cable
service and any other services offered over the cable system, to the
extent permitted by federal or state law. The grantee shall be subject
to the rate regulation provisions provided for in this article, and
those of the Federal Communications Commission (FCC) at 47 CFR 76.901
et seq. The City shall follow the rules relating to cable rate regulation
promulgated by the Federal Communications Commission at 47 CFR 76.901
et seq.
[Code 2005 § 102-70]
A.
Following the issuance and acceptance of a franchise, the grantee
shall pay to the grantor a franchise fee in the amount set forth in
the franchise agreement.
B.
The grantor, on an annual or quarterly basis, as set forth in the
franchise, shall be furnished a statement within 60 days of the close
of the calendar year or quarter, certified by an officer of the grantee
or audited by a certified public accountant, reflecting the total
amounts of gross annual revenues and all payments, and computations
for the previous calendar year or quarter. Such statement shall further
reflect the specific revenues received from each direct and indirect
revenue category. Upon 10 days' prior written notice, the grantor
shall have the right to conduct an independent audit of the grantee's
records, in accordance with generally accepted accounting principles
and if such audit indicates a franchise fee underpayment of 5% or
more, the grantee shall assume all reasonable costs of such an audit.
C.
Except as otherwise provided by law, no acceptance of any payment
by the grantor shall be construed as a release or as an accord and
satisfaction of any claim the grantor may have for further or additional
sums payable as a franchise fee under this article or any franchise
agreement or for the performance of any other obligation of the grantee.
D.
In the event that any franchise fee payment or recomputed amount
is not made on or before the dates specified in the franchise agreement,
the grantee shall pay as additional compensation an interest charge,
computed from such due date, at an annual rate equal to the prime
lending rate plus 1 1/2% during the period for which payment
was due.
E.
Franchise fee payments shall be made in accordance with the schedule
indicated in the franchise agreement.
[Code 2005 § 102-71]
A.
The grantee shall not construct any cable system facilities until
grantee has secured the necessary permits from the grantor, or other
cognizant public agencies.
B.
In those areas of the City where transmission or distribution facilities
of all the public utilities providing telephone and electric power
service are underground, the grantee likewise shall construct, operate
and maintain its transmission and distribution facilities therein
underground.
C.
In those areas of the City where the grantee's cables are located
on the aboveground transmission or distribution facilities of the
public utility providing telephone or electric power service, and
in the event that the facilities of both such public utilities subsequently
are placed underground, then the grantee likewise shall construct,
operate and maintain its transmission and distribution facilities
underground, at the grantee's cost. Certain of the grantee's
equipment, such as pedestals, amplifiers and power supplies, which
normally are placed above ground, may continue to remain in aboveground
closures.
D.
All transmission and distribution structures, lines, and equipment
erected by the grantee within the City shall be so located so as to
cause minimum interference with the proper use of streets, sidewalks,
alleys and other public ways and places, and to cause minimum interference
with the rights and reasonable convenience of property owners who
join any of the streets, sidewalks, alleys or public ways and places,
and not to interfere with existing public utility installations.
E.
In case of disturbance of any street, sidewalk, alley, public way,
driveway, pavement or other surfacing, the grantee shall, at its own
cost and expense and in a manner approved by the City Manager, replace
and restore such street, sidewalk, alley, public way, driveway, pavement
or other surfacing in as good a condition as before the work causing
such disturbance was done.
F.
If at any time during the term of this franchise it should become
desirable, for any public purpose, to remove, relay or relocate any
of the grantee's poles, wires, cables, underground conduits,
manholes, or other fixtures located in any street, alley or other
public way, the grantee shall, upon reasonable notice by the City,
effect such removal, relaying or relocation at its own expense and
in each instance comply with the requirements of the City.
G.
Any poles or other fixtures placed in any public way by the grantee
shall be placed in such manner as not to interfere with the usual
travel on such public way.
H.
The grantee shall, upon the request of any person holding a building
moving permit issued by the City, temporarily raise or lower its wires
to permit the moving of buildings. The expense of such temporary removal
or raising or lowering of wires shall be paid by the person requesting
the temporary removal or raising or lowering of such wires, and the
grantee shall have the authority to require such payment in advance.
The grantee shall be given not less than 48 hours' advance notice
to arrange for such temporary wire changes.
I.
The grantee shall annually furnish to and file with the City changes
to maps, plats and permanent records of the location and character
of all facilities constructed, including underground facilities.
J.
In new residential developments in which all the electric power and
telephone utilities are underground, the following procedure shall
apply with respect to access to and utilization of underground easements:
(1)
The developer shall be responsible for contacting and surveying all
permitted cable operators to ascertain which operators desire (or,
pursuant to the terms and provisions of this article and any franchise
agreement, may be required) to provide cable service to that development.
The developer may establish a reasonable deadline to receive cable
operator responses. The final development map shall indicate the cable
operators that have agreed to serve the development.
(2)
If one or two cable operators wish to provide service, they shall
be accommodated in the joint utilities trench on a nondiscriminatory
shared basis. If fewer than two operators indicate interest, the developer
shall provide conduit to accommodate two sets of cable television
cables and dedicate to the City any initially unoccupied conduit.
The developer shall be entitled to recover the cost of such initially
unoccupied conduit in the event that grantor subsequently leases or
sells occupancy or use rights to any grantee.
(3)
The developer shall provide at least 10 working days' notice
of the date that utility trenches will be open to the cable operators
that have agreed to serve the development. When the trenches are open,
cable operators shall have two working days to begin the installation
of their cables, and five working days after beginning installation
to complete installation.
(4)
The final development map shall not be approved until the developer
submits that:
a.
It has notified each grantee that underground utility trenches are
to open as of an estimated date, and that each grantee will be allowed
access to such trenches, including trenches from proposed streets
to individual homes or home sites, on specified nondiscriminatory
terms and conditions; and
b.
It has received a written notification from each grantee that the
grantee intends to install its facilities during the open trench period
on the specified terms and conditions, or such other terms and conditions
as are mutually agreeable to the developer and the grantee, or has
received no reply from a grantee within 10 days after its notification
to such grantee, in which case the grantee will be deemed to have
waived its opportunity to install its facilities during the open trench
period.
(5)
Sharing the joint utilities trench shall be subject to compliance
with state regulatory agency and utility standards. If such compliance
is not possible, the developer shall provide a separate trench for
the cable television cables, with the entire cost shared among the
participating cable operators. With the concurrence of the developer,
the affected utilities and the cable operators, alternative installation
procedures, such as the use of deeper trenches, may be utilized, subject
to applicable law.
(6)
Any cable operator wishing to serve an area where the trenches have
been closed shall be responsible for its own trenching and associated
costs and shall repair all property to the condition which existed
prior to such trenching.
[Code 2005 § 102-72]
A.
The grantee shall construct, install, operate and maintain its system
in a manner consistent with all applicable laws, ordinances, construction
standards, governmental requirements, Federal Communications Commission
technical standards, and any standards set forth in its franchise
agreement. In addition, the grantee shall provide to the grantor,
upon request, a written report of the results of the grantee's
periodic proof of performance tests conducted pursuant to Federal
Communications Commission standards and guidelines.
B.
Repeated and verified failure to maintain specified technical standards
shall constitute a material franchise violation.
C.
All construction practices shall be in accordance with all applicable
sections of the Occupational Safety and Health Act of 1970 (29 USC
651 et seq.), as amended, as well as all other applicable local, State
and federal laws and regulations.
D.
All installation of electronic equipment shall be installed in accordance
with the provisions of the National Electrical Safety Code and the
National Electrical Code, as amended, and as may from time to time
be amended.
E.
Antennae and their supporting structures (towers) shall be painted,
lighted, erected and maintained in accordance with all applicable
rules and regulations of the Federal Aviation Administration and all
other applicable local, state and federal laws and regulations.
F.
All of the grantee's plant and equipment, including, but not
limited to, the antenna site, headend and distribution system, towers,
house connections, structures, poles, wire, coaxial cable, fixtures
and appurtenances, shall be installed, located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated
in accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or interfere
with improvements that the City may deem appropriate to make or to
interfere in any manner with the rights of any property owner, or
to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
G.
The grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices preventing
failures and accidents which are likely to cause damage, injury or
nuisance to the public.
[Code 2005 § 102-73]
The grantee shall have the authority to trim trees, in accordance
with all applicable utility restrictions, ordinance and easement restrictions,
upon and hanging over streets, alleys, sidewalks, and public places
of the City so as to prevent the branches of such trees from coming
in contact with the wires and cables of the grantee. City representatives
shall have authority to supervise and approve all trimming of trees
conducted by the grantee.
[Code 2005 § 102-74]
The City shall have the right to install and maintain, free
of charge, upon the poles and within the underground pipes and conduits
of the grantee, any wires and fixtures desired by the City to the
extent that such installation and maintenance does not interfere with
existing operations of the grantee.
[Code 2005 § 102-75]
A.
The grantee, under any franchise operated pursuant to this article,
shall agree to indemnify, hold harmless, release and defend the City,
its officers, boards, commissions, agents and employees from and against
any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, disability, losses, expenses, including reasonable
attorneys' fees and costs or liabilities of any nature that may
be asserted by any person resulting or in any manner arising from
the action or inaction of the grantee in constructing, operating,
maintaining, repairing or removing the system, in carrying on grantee's
business or operations in the City or in exercising or failing to
exercise any right or privilege granted by the franchise. This indemnity
shall apply, without limitation, to any action or cause of action
for invasion of privacy, defamation, antitrust, errors and omissions,
theft, fire, violation or infringement of any copyright, trademark,
trade name, service mark or patent, or any other right of any person,
whether or not any act or omission complained of is authorized, allowed
or prohibited by this article of any franchise agreement, but shall
not include any claim or action arising out of the actions or omissions
of City officers, employees or agents or related to any City programming
or other access programming for which the grantee is not legally responsible.
B.
The City shall promptly notify grantee of any claims subject to indemnification
by grantee and shall cooperate with all reasonable requests by the
grantee for information, documents, testimony or other assistance
appropriate to a resolution of such claims. The grantee shall have
full responsibility for and control of any action or undertaking directed
at the resolution of such claims.
[Code 2005 § 102-76]
The grantee shall provide insurance as specified in the franchise
agreement.
[Code 2005 § 102-77]
A.
The grantee shall at all times maintain:
(1)
A full and complete set of plans, records and "as-built" maps showing
the location of the cable television system installed or in use in
the City, exclusive of subscriber service drops and equipment provided
in subscribers' homes.
(2)
If requested by the grantor, a summary of service calls, identifying
the number, general nature and disposition of such calls, on a monthly
basis. A summary of such service calls shall be submitted to the grantor
within 30 days following its request in a form reasonably acceptable
to the grantor.
B.
Upon five days' written notice, and during normal business hours,
the grantee shall permit examination by any duly authorized representative
of the grantor, of all franchise property and facilities, together
with any appurtenant property and facilities of the grantee situated
within the City, and all records relating to the permit, provided
they are necessary to enable the grantor to carry out its regulatory
responsibilities under local, state and federal law, this article
and the franchise agreement. Such records include all books, records,
maps, plans, financial statements, service complaint logs, performance
test results, records of request for service, and other like materials
of the grantee. The grantee shall have the right to be present at
any such examination.
C.
If any of the records described in the previous subsection are proprietary
in nature or must be kept confidential by state, federal or local
law, upon proper request by the grantee, such information obtained
during such an inspection shall be treated as confidential, making
it available only to those persons who must have access to perform
their duties on behalf of the City, including but not limited to the
City Manager, City Clerk, City Attorney and City Commission members.
To the extent that any federal requirement for privacy applies to
the information to be submitted, such law shall control.
D.
Copies of all petitions, applications, communications and reports
submitted by the grantee, or on behalf of or relating to the grantee,
to the Federal Communications Commission, Securities and Exchange
Commission, or any other federal or state regulatory commission or
agency having jurisdiction with respect to any matters affecting the
cable system authorized pursuant to this article and any franchise
shall be made available to the City upon request. Copies of responses
from the regulatory agencies to the grantee shall likewise be furnished
to the City upon request.
[Code 2005 § 102-78]
A.
The grantee shall submit a written end of the year report to the
grantor with respect to the preceding calendar year containing the
following information:
(1)
A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development
of the cable system, including but not limited to services begun or
discontinued during the reporting year.
(2)
A list of the grantee's officers, members of its board of directors,
and other principals of the grantee.
(3)
The total number of subscribers.
(4)
The City, including its agents and representatives, shall have the
authority, during normal business hours, to arrange for and conduct
an inspection of annual reports required pursuant to this article
or a franchise agreement. The City shall give the grantee five days'
written notice of the inspection request.
|
If the requested information is proprietary in nature or must
be kept confidential by state, federal or local law, or upon proper
request by the grantee, such information obtained during such an inspection
shall be treated as confidential, making it available only to those
persons who must have access to perform their duties on behalf of
the City, including but not limited to the City Manager, City Clerk,
City Attorney and City Commission members. To the extent any federal
requirement for privacy applies to the information to be submitted,
such law shall control.
|
B.
All reports and records required under this article shall be furnished
at the sole expense of the grantee, except as otherwise provided in
this article or the franchise agreement.
[Code 2005 § 102-79]
A.
If the grantee fails to perform in a timely manner any material obligation
required by this article or a franchise granted under this article,
following notice from the grantor and an opportunity to cure such
nonperformance, the grantor may act to remedy such violation in accordance
with the following procedures:
(1)
The grantor shall notify the grantee of any alleged material violation
in writing by personal delivery or registered or certified mail, and
demand correction within a reasonable time, which shall not be less
than 10 days in the case of the failure of the grantee to pay any
sum or other amount due the grantor under this article or the grantee's
franchise and 30 days in all other cases.
(2)
If the grantee fails either to correct the violation within the time
prescribed or to commence correction of the violation within the time
prescribed and thereafter diligently pursue correction of such violation,
the grantor shall then give written notice of not less than 20 days
of a public hearing to be held before the City Commission. Such notice
shall specify the violations alleged to have occurred. At the public
hearing, the City Commission shall hear and consider relevant evidence
and shall give the grantee a full and fair opportunity to be heard
and thereafter render findings and its decision.
B.
In the event that the City Commission finds that a material violation
exists and that the grantee has not corrected the violation in a satisfactory
manner or has not diligently commenced correction of such violation
after notice thereof from the grantor and is not diligently proceeding
to fully remedy such violation, the City Commission may revoke the
franchise or impose any other penalty permitted by the franchise agreement.
[Code 2005 § 102-80]
In the event the grantee's performance of any of the terms,
conditions or obligations required by this article or a franchise
granted under this article is prevented by a cause or event not within
the grantee's control, such inability to perform shall be deemed
excused and no penalties or sanctions shall be imposed as a result
thereof. For the purpose of this section, causes or events not within
the control of the grantee shall include without limitation acts of
God, strikes, sabotage, riots or civil disturbances, restraints imposed
by order of a governmental agency or court, failure or loss of utilities,
explosions, acts of public enemies, and natural disasters such as
floods, earthquakes, landslides, and fires.
[Code 2005 § 102-81]
A.
In the event that the use of any property of grantee within the franchise
area or a portion thereof is discontinued for a continuous period
of 12 months, the grantee shall be deemed to have abandoned that franchise
property.
B.
The grantor, upon such terms as the grantor may impose, may give
the grantee permission to abandon, without removing, any system facility
or equipment laid, directly constructed, operated or maintained under
the franchise. Unless such permission is granted or unless otherwise
provided in this article, the grantee shall remove all abandoned aboveground
facilities and equipment upon receipt of written notice from the grantor
and shall restore any affected street to its former state at the time
such facilities and equipment were installed, so as not to impair
its usefulness. In removing its plant, structures and equipment, the
grantee 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 that prevailing prior to such removal without materially
interfering with any electrical or telephone cable or other utility
wires, poles or attachments. The grantor shall have the right to inspect
and approve the condition of the public ways, public places, cables,
wires, attachments and poles prior to and after removal. The liability,
indemnity and insurance provisions of this article and any security
fund provided in the franchise shall continue in full force and effect
during the period of removal and until full compliance by grantee
with the terms and conditions of this section.
C.
Upon abandonment of any franchise property in place, the grantee,
if required by the grantor, shall submit to the grantor an instrument,
satisfactory in form to the grantor, transferring to the grantor the
ownership of the franchise property abandoned.
D.
At the expiration of the term for which the franchise is granted,
or upon its revocation or earlier expiration, as provided for in this
article, in any such case without renewal, extension or transfer,
the grantor shall have the right to require the grantee to remove,
at its own expense, all aboveground portions of the cable television
system from all streets and public ways within the City within a reasonable
period of time, which shall not be less than 180 days.
E.
Notwithstanding anything to the contrary set forth in this article,
the grantee may abandon any underground franchise property in place
so long as it does not materially interfere with the use of the street
or public rights-of-way in which such property is located or with
the use thereof by any public utility or other cable grantee.
[Code 2005 § 102-82]
Upon either expiration or revocation of the franchise, the grantor
shall have discretion to franchise and/or require the grantee to continue
to operate the cable television system for an extended period of time
not to exceed six months from the date of such expiration or revocation.
The grantee shall continue to operate the system under the terms and
conditions of this article and the franchise and to provide the regular
subscriber service and any and all of the services that may be provided
at that time.
[Code 2005 § 102-83]
A.
A franchise granted under this article shall, at the option of the
grantor, cease and terminate 180 days after appointment of a receiver
or receivers, or trustee or trustees, to take over and conduct the
business of the grantee, whether in a receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
such 180 days, or unless:
(1)
Such receivers or trustees shall have, within 180 days after their
election or appointment, fully complied with all the terms and provisions
of this article and the franchise granted pursuant this article, and
the receivership or trustees within such 180 days shall have remedied
all the faults under the franchise or provided a plan for the remedy
of such faults which is satisfactory to the grantor; and
(2)
Such receivers or trustees shall, within such 180 days, execute an
agreement duly approved by the court having jurisdiction in the premises,
whereby such receivers or trustees assume and agree to be bound by
each and every term, provision and limitation of the franchise granted.
B.
In the case of a foreclosure or other judicial sale of the franchise
property, or any material part thereof, the grantor may serve notice
of termination upon the grantee and the successful bidder at such
sale, in which event the franchise granted and all rights and privileges
of the grantee under this article shall cease and terminate 30 days
after service of such notice, unless:
[Code 2005 § 102-84]
A.
In addition to any rights specifically reserved to the grantor by
this article, the grantor reserves to itself every right and power
which is required to be reserved by a provision of any ordinance or
under the franchise.
B.
The grantor shall have the right to waive any provision of the franchise,
except those required by federal or state regulation, if the grantor
determines that it is in the public interest to do so, and that the
enforcement of such provision will impose an undue hardship on the
grantee or the subscribers. To be effective, such waiver shall be
evidenced by a statement in writing signed by a duly authorized representative
of the grantor. Waiver of any provision in one instance shall not
be deemed a waiver of such provision subsequent to such instance nor
be deemed a waiver of any other provision of the franchise unless
the statement so recites.
[Code 2005 § 102-85]
A.
The grantee shall not deny service, deny access, or otherwise discriminate
against subscribers, channel users, or general citizens on the basis
of race, color, religion, national origin, age, disability, gender
or sexual preference. The grantee shall comply at all times with all
other applicable federal, state and local laws and regulations, relating
to nondiscrimination.
B.
The grantee shall adhere to the applicable equal employment opportunity
requirements of federal, state and local regulations.
C.
Neither the grantee, nor any person, agency, or entity shall, without
the subscriber's consent, tap or arrange for the tapping, of
any cable, line, signal input device, or subscriber outlet or receiver
for any purpose except routine maintenance of the system, detection
of unauthorized service, polling with audience participating, or audience
viewing surveys to support advertising research regarding viewers
where individual viewing behavior cannot be identified.
D.
In the conduct of providing its services or in pursuit of any collateral
commercial enterprise resulting therefrom, the grantee shall take
reasonable steps to prevent the invasion of a subscriber's or
general citizen's right of privacy or other personal rights through
the use of the system as such rights are delineated or defined by
applicable law. The grantee shall not, without lawful court order
or other applicable valid legal authority, utilize the system's
interactive two-way equipment or capability for unauthorized personal
surveillance of any subscriber or general citizen.
E.
The grantee shall, on the request of any person holding a building
moving franchise issued by the franchising authority, temporarily
raise or lower its wires to franchise the moving of such building,
provided:
F.
No cable line, wire amplifier, converter, or other piece of equipment
owned by the grantee shall be installed by the grantee in the subscriber's
premises, other than in appropriate easements, without first securing
any required consent. If a subscriber requests service, permission
to install upon the subscriber's property shall be presumed.
Where a property owner or his predecessor has granted an easement
including a public utility easement or a servitude to another and
the servitude by its terms contemplates a use such as grantee's
intended use, the grantee shall not be required to obtain the written
permission of the owner for the installation of cable television equipment.
