[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:
BASIC CABLE SERVICE
Any service tier which includes the retransmission of local
television broadcast signals.
CABLE ACT
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.
CABLE SERVICE
(1)
The one-way transmission to subscribers of video programming
or other programming service; and
(2)
Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
CABLE TELEVISION SYSTEM, SYSTEM and CABLE SYSTEM
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:
(1)
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
(2)
A facility that serves subscribers without using any public
rights-of-way;
(3)
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;
(4)
An open video system that complies with 47 USC 653; or
(5)
Any facilities of any electric utility used solely for operating
its electric utility system.
CHANNEL and CABLE CHANNEL
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.
FRANCHISE
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.
FRANCHISE AGREEMENT
A franchise granted pursuant to this article, containing
the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
FRANCHISE FEE
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:
(1)
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;
(2)
Capital costs (including grants) that are required by the franchise
agreement to be incurred by the cable operator for educational or
governmental access facilities;
(3)
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
(4)
Any fee imposed under Title 17 of the United States Code.
GRANTEE
Any person receiving a franchise pursuant to this article
and its agents, employees, officers, designees, or any lawful successor,
transferee or assignee.
GRANTOR AND CITY
The City, as represented by the City Commission or any delegate
acting within the scope of its jurisdiction.
GROSS ANNUAL REVENUES
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."
INITIAL SERVICE AREA
The area of the City that will receive cable service initially,
as set forth in any franchise agreement.
INSTALLATION
The connection of the system to subscribers' terminals,
and the provision of cable service.
NORMAL BUSINESS HOURS
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.
NORMAL OPERATING CONDITIONS
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.
PERSON
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.
SECTION
Any section, subsection, or provision of this article.
SERVICE AREA and FRANCHISE AREA
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.
SERVICE INTERRUPTION
The loss of picture or sound on one or more cable channels
affecting at least 10% of the subscribers on the system.
STREET
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.
SUBSCRIBER
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 § 102-35]
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 § 102-59]
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 § 102-63]
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 § 102-65]
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 § 102-67]
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.
c. Refunds. Refund checks will be issued promptly, but no later than
either:
1. The subscriber's next billing cycle following resolution of
the request or 30 days, whichever is earlier; or
2. The return of the equipment supplied by the grantee if service is
terminated.
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 § 102-73]
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 § 102-76]
The grantee shall provide insurance as specified in 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 § 102-82]
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.