City of Ithaca, MI Cable Communications Systems

The retransmission to all subscribers of all broadcast television channel signals authorized by the Federal Communications Commission and provided for in the franchise agreement;

CABLE COMMUNICATIONS SYSTEM and SYSTEM

The cablecasting to all subscribers of programming on the local origination channel, and all public, educational, government and community access channels.

BROADCAST SIGNAL

A television or radio signal that is transmitted over the air, and is received by a cable communications system off the air through a microwave or satellite link, and retransmitted to cable system subscribers.

A system of antennas, cables, amplifiers, towers, microwave links, cablecasting studios and any other conductors, converters, equipment or facilities designed and constructed for the purpose of distributing video programming to home subscribers and for producing, receiving, amplifying, storing, processing or distributing audio, video, digital or other forms of electronic or electric signals.

CABLE FACILITY

A nonbroadcast signal that originates within the facilities of the cable communications system.

CABLECAST

To distribute programs originating locally to subscribers to the cable system.

CHANNEL

A frequency band, which is capable of carrying one standard video signal, a number of audio, digital or other nonvideo signals, or a combination of such signals.

COMMUNITY ACCESS GROUP

A nonprofit group or organization designated as eligible to utilize access channels and facilities.

CONVERTER

An electronic device which converts signals transmitted as cable service to a frequency which permits their reception on subscriber's television receivers.

DROP

The cable and related hardware, including grounding materials, which connect a subscriber's premises to the cable system.

EASEMENT

The right to occupy and use public rights-of-way, including public utility easements, for the operation of a cable system.

EDUCATION ACCESS CHANNEL

A channel where local educational institutions are the primary designated programmers.

FCC

The Federal Communications Commission, and any legally appointed designee, agent or successor.

FRANCHISE

The rights granted pursuant to this article to construct, own, operate and maintain a system as defined by this article, within the jurisdiction of the grantor. Any such authorization, in whatever form granted, shall not mean nor include a license or permit required for the privilege of transacting and carrying on a business within the jurisdiction of the grantor as required by other ordinances and laws of the grantor.

FRANCHISE AGREEMENT

A written agreement between the grantor and grantee, including the specifications, franchise applications and other related material establishing the grantee's rights and responsibilities relating to construction, operation and maintenance of a cable communications system.

GOVERNMENT ACCESS CHANNEL

A channel where local governmental agencies are the designated programmer.

GRANTEE

The franchisee, its successors or delegates acting within the scope of its franchise.

GRANTOR

The City or its designee.

GROSS RECEIPTS

All revenues derived directly or indirectly by a grantee, its affiliates, subsidiaries, parents and any person in which a grantee owns any interest from or in connection with the operation of the cable system for the delivery of cable service including, but not limited to, all monthly and subscriber fees for basic service and any premium services, installation and reconnection charges, equipment rental charges for converters, videocassette recorders, video production equipment and videotape programming, advertising revenue and leased channel revenue; provided, however, that this term does not include revenues generated from the sale or lease of capital assets unrelated to the operation of the cable system within the City, or to the delivery of cable service outside of the City.

HEADEND

A location which houses the electronic equipment that transmits the necessary signal and services for the cable system, and includes subheadends and similar facilities.

INSTALLATION

The complete process of constructing a subscriber drop which connects a television receiver to the cable system.

LEASED ACCESS AND LEASED ACCESS CHANNEL

A channel, or portion of a channel, available for lease and programming by persons or entities other than the grantee.

LOCAL ORIGINATION CHANNEL

A channel where the grantee is the primary designated programmer and provides local programs to subscribers.

PARENTAL CONTROL LOCKOUT DEVICE

A special electronic circuit or other appropriate device designed to permit a subscriber to temporarily scramble, block or trap any signal that cannot be viewed without the use of a code or physical key apparatus.

PAY CABLE and PAY TELEVISION

The delivery of television signals over the cable communications system for a fee or charge to subscribers, over and above the charge for basic service on a per program, per channel or other subscription basis.

PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL and COMMUNITY CHANNEL

A channel where any member of the general public or any noncommercial organization may be a programmer, without charge, on a nondiscriminatory basis.

STREET

The surface of and the space above and below a public street, road, highway, freeway, lane, path, public way or place, alley, court, sidewalk, boulevard, parkway, drive or any easement or extension, now or later held by the grantor for any public purpose, and shall include any other easement or right-of-way or extension as may be later held by the grantor which shall, within its proper use and meaning, entitle the grantor and its grantee to its use.

THEFT OF SERVICE

The unauthorized reception of cable service and shall include the action of any person who shall intercept or receive, or assist in intercepting or receiving, any cable service offered over a cable system, unless such actions are specifically or otherwise authorized by a grantee or by law.

§ 34-32 Purpose.

[Code 1968, § 3-1003]

The grantor finds that the development of the cable communications system has the potential of having great benefit and impact upon its citizens. Because of the complex and rapidly changing technology associated with cable television, the grantor further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the grantor or such persons as the grantor shall designate. It is the purpose of this article and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters, and any franchise issued pursuant to this article shall be deemed to include this finding as an internal part. Further, it is recognized that cable communications systems have the capacity to provide not only entertainment and information services to the City residents, but also a variety of interactive communication services to institutions and individuals. Many of these services involve municipal agencies and other public institutions by providing governmental, educational or health care communications. For these purposes, to the extent practicable, the following goals underlie the regulations contained in this article:

The cable communications system should be capable of accommodating both the present and reasonably foreseeable future communication needs of the community.

The cable communications system should be improved and upgraded, if necessary, during the franchise term so that the new facilities necessary for the operation of the system shall be integrated to the maximum extent possible with existing facilities.

The cable communications system authorized by this article shall be responsive to the needs and interests of the community and shall provide a wide diversity of information sources and services to the public.

That the public, educational and governmental needs for access to the cable communications system are met.

§ 34-33 Franchise required.

[Code 1968, § 3-1004]

No person shall own or operate a cable communications system in the jurisdiction without first making application and receiving approval for a franchise in the form of a franchise agreement between the grantor and the grantee which shall comply with all of the terms and specifications contained in this article. Franchise agreements shall authorize the use of public easements for the construction and operation of cable communication systems, but they shall not convey any property rights to a grantee. No franchise agreement shall, either expressly or implicitly, be deemed to restrict the granting of subsequent agreements, nor shall any franchise agreement create any right to renewal. The failure to obtain a franchise agreement as required by this article shall constitute a misdemeanor.

§ 34-34 Application process.

[Code 1968, § 3-1005]

Applications for a franchise shall be reviewed in accordance with the procedures of this section. Persons seeking to obtain a franchise may at any time file a written application with the grantor's administrator or designee in conformity with the minimum requirements of this section. The grantor reserves the right to issue more specific requests for proposals (RFP) from time to time as circumstances may require, in which case, all information specified must be supplied.

Basic information. In order to be reviewed in accordance with this section, all applications must include an application fee as set by the grantor or the grantor's designee and present the following detailed information:

The applicant's legal name and principal business address.

A listing of the applicant's officers, directors and/or other principals, with sufficient biographical information to permit the grantor to evaluate the expertise of the applicant.

A listing of stockholders, or other equity investors or owners having a minimum of 2% interest at the time of the application, and an indication of the person having control of the application, together with conformed copies of any articles of incorporation and bylaws.

A complete set of financial statements prepared by an independent firm of certified public accountants with certification by a financial officer of the applicant which includes a profit and loss statement and balance sheet covering the operation of the current system for the past two years in the case of a renewal application or covering any other cable communication system which the applicant has owned for the past two fiscal years of operation in the case of an initial application.

A consolidated statement of net worth containing sufficiently detailed information such that, when reviewed together with the required financial statements, the grantor would be able to readily determine the financial responsibility of the applicant.

A general description of the status of the current system or proposed design for any planned new system, with detailed maps for construction or reconstruction showing where the applicant has used or will use public rights-of-way, antenna/tower locations, trunk and feeder design, channel capacity, extent of two-way capability, addressability and microwave facilities.

A detailed description of currently existing or proposed video production capability together with the proposed plans for developing the usage of such capability.

A description of the cable services to be provided over the system and, where service is to be offered in packages or tiers, some designation of the services available on each tier as well as any technical devices required to receive such services.

A detailed discussion of the specific plans which the applicant intends to pursue in order to meet the future cable-related needs and interests of the City.

In the case of renewal applications, a detailed statement of the activities of the grantee which meet or exceed the requirements of any current franchise.

A sworn statement by the chief executive officer of the applicant, certifying the truth of all information contained in the application.

Review procedure.

Upon receipt, the application shall be reviewed. If the application does not appear to be complete, it shall be returned to the applicant with an indication of what additional information is required.

The application review shall consider the relevant strengths and weaknesses of every applicant on its own merits. The service record of the applicant in other communities, as well as the past service record within the jurisdiction in the case of a renewal application, shall be relevant criteria among others. In particular, the review may focus upon the demonstrated ability of an applicant to develop new and advanced uses of its technology, its plans to develop community interest and usage of the technology, the price/value relationship between current or proposed services and the satisfaction of the subscribers or probable subscribers, the strength of on-site management, as well as any other criteria which the grantor deems relevant.

Public hearings. The grantor shall not execute a franchise agreement for a term of years in compliance with this article unless legal, financial, technical and operational qualifications of the grantee are established, as well as the adequacy and feasibility of the proposed contractual arrangements. Where an applicant demonstrates that it can provide cable services deemed to be in the best interest of the City, the application may be approved. Following a preliminary determination that an application appears to be in the best interest of the City, the grantor shall notify the applicant of the date and time set for a public hearing on the proposed contractual arrangements and the findings of the grantor to date. The hearing shall be preceded by public notice published at least 10 days prior to the hearing in a newspaper of general circulation within the City. If the grantor approves the findings made at the public hearing, it may grant a franchise to the applicant in the form of a franchise agreement, which shall constitute a contract between the grantor and the grantee.

Negotiated provisions of the franchise agreement. The franchise agreement shall contain such further conditions or provisions as may be negotiated between the grantor and the grantee.

Grantee acknowledgement. A grantee shall acknowledge its acceptance of a franchise agreement by written affidavit in a form approved by the grantor wherein it shall be recited that the grantee has reviewed in detail the terms and conditions contained in the franchise agreement with legal counsel of its choice, and that the grantee is satisfied and accepts such terms as its negotiated agreement to provide cable service and that it knowingly accepts all business risks.

§ 34-35 Franchise requirements.

[Code 1968, § 3-1006]

A franchise agreement executed pursuant to this article shall incorporate the terms and conditions set forth in this article, whether or not such terms and conditions are fully reproduced in such franchise agreement, which incorporation shall commit a grantee to be bound by the rules and regulations established in accordance with the provisions of this section, and all other sections of this article.

Franchise term. The maximum term for a franchise agreement between the grantor and a grantee shall be 15 years, and the minimum term shall be one year. The grantor shall approve the term which it deems to be in the best interest of the City and in furtherance of the public health, safety and convenience according to all of the facts and circumstances of each application.

Service area. Each applicant for a franchise to provide cable service shall, in its application, define the initial service area and provide a line extension and drop policy for extending areas outside of the initial service area. Upon execution of a franchise agreement, the grantee shall proceed as soon as may be practical to construct or reconstruct the cable system so as to be in compliance with this article and any franchise agreement. The failure or neglect to complete construction, reconstruction or maintenance within the allotted time or any extension shall render any franchise agreement voidable upon written notice from the grantor of its intention to cancel the contract.

Franchise fee. As compensation for the use of the streets, public ways and places, and other facilities; for the construction, operation, maintenance, modification or reconstruction of a cable system; and for the grantor's costs of maintenance, improvement and supervision thereof; and for the grantor's costs of establishing and conducting the regulatory activities required by virtue of the granting of a franchise pursuant to this article, the grantee shall pay to the grantor 5% of its annual gross receipts for the term of its franchise agreement, or any portion thereof, while it is operating a cable system in accordance with this article.

The grantor expressly reserves the right to negotiate a lower percentage fee in any franchise agreement if it determines that such a lower percentage is in the best interest of the City.

The franchise fee set forth in a franchise agreement shall be due and payable on a monthly basis. The grantee shall prepare a monthly report stating its gross receipts by revenue category for the immediately preceding month. This gross receipts report shall be submitted to the administrator or the grantor's designee, with the franchise fee percentage payment no later than the close of business on the 30th day of the month following the reporting period.

At the end of a calendar year the franchise fees paid by a grantee shall be adjusted to account for any under or over payments. In no event shall the franchise fees paid to the grantor exceed 5% of the gross receipts derived from any twelve-month period of operation of the cable system, including the time value of money which would have lawfully been collected if such fees had been paid per annum in arrears. The grantee shall be solely responsible for determining the amount of its monthly payments in this regard. To the extent that overpayments occur, any amounts paid in excess of that which was due shall be deemed to be credited to the following month's payment. The failure to remit the full balance due in any month shall be cured at year end by a complete audit. The grantee shall submit to the grantor no later than April 15 of each year of operation complete financial statements, which shall be prepared by an independent certified public accountant, detailing its monthly operation for the preceding calendar year. Interest on any underpaid amounts shall accrue from the date such payments were due until they are paid at the maximum allowable rate under state law.

Nothing in this section shall restrict or nullify any liquidated damage provisions relating to nonpayment of franchise fees on a timely basis contained elsewhere in this article or in a franchise agreement, and nothing in this section shall restrict the authority of the grantor to tax the grantee in the ordinary course of its operations solely because of its status as a franchisee.

Indemnification. Each applicant for a franchise to own and operate a cable system in the City shall agree in the application to indemnify the grantor against liability for any and all claims arising out of the application process, renewal process, installation, operation, maintenance, construction or reconstruction, extension or removal of the cable system. The agreement to indemnify the grantor shall be stated in every franchise agreement executed and shall expressly include a reference to the reimbursement of all expenses incurred by the grantor in defending itself if any claims are made against it by way of lawsuit or otherwise. The grantor shall notify the grantee or applicant within 30 days following the receipt of any claim of demand for which the grantee or applicant would be liable according to its indemnification responsibilities. Any such notice will be given in writing to the person, and at the place named in the franchise agreement or application for a franchise.

Insurance. In order to provide for the general welfare and convenience of the public and to protect the interests of the grantor, every applicant for a franchise shall indicate the ability to obtain insurance in a form and amount which satisfies the requirements of this subsection. The grantor shall not execute a franchise agreement in accordance with this article unless and until an approved grantee provides adequate proof of insurance, together with written proof of payment of all such premiums as may be required to put the coverage described in full force and effect. It shall be the duty of every grantee to file annually with the grantor proof of insurance coverage including copies of the insurance policies.

Each grantee shall obtain and keep in full force and effect at all times during the term of any franchise agreement or extension thereof a policy of broad form comprehensive general liability insurance which includes personal injury liability and blanket contractual liability. Such policy shall provide the minimum coverages for the benefit of the grantor as adopted by resolution of the City Council from time to time.

Each grantee shall obtain and keep in full force and effect at all times during the term of any franchise agreement or extension of such agreement all risk liability damage insurance (excluding flood and earthquake coverage only) covering losses arising with respect to the following real and personal property incidental to the operation of its cable system: all buildings, offices, studios and other realty or personalty ordinarily contained therein; headend electronics or any subheadends; earth stations, antenna towers, microwave transmission towers; and vehicles. No physical damage insurance shall be required for the distribution system (neither trunk, feeder or drop lines), amplifiers or passive hardware, or converters. It shall be the sole responsibility of the grantee to pay for all premiums due from the coverage outlined in this section.

Each policy of insurance required by this section shall contain a ninety-day cancellation or nonrenewal provision which shall expressly require the carrier to give written notice to the grantor administrator 90 days prior to cancellation, nonrenewal or material alteration of such coverage.

A policy of insurance issued pursuant to the requirements of this section shall only satisfy this article if it is issued by a responsible and nonassessable insurance carrier duly authorized to do business in the state, which company must have been rated at least B+ by Best's during each of the preceding five years.

Nothing in this section shall be construed to excuse a grantee from the faithful performance of its obligations under any franchise agreement or to limit its liability under any provision of this article.

Security fund. Prior to the execution of a franchise agreement, the grantee shall provide and maintain a security fund for the period and in the sum specified in the franchise agreement as security for the faithful performance by the grantee of all of the provisions of this franchise and compliance with all orders, permits and directions of any agency of the grantor having jurisdiction over its acts or defaults under the franchise, and for the payment by the grantor of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system. The security fund may be assessed by the grantor for purposes including, but not limited to, the following:

Failure of the grantee to pay the grantor sums due under the terms of the franchise;

Reimbursement of costs borne by the grantor to correct franchise violations not corrected by the grantee, after due notice;

Liquidated damages assessed against the grantee due to default or violation of franchise requirements which result in financial damage to the grantor;

Liquidated damages assessed against the grantee due to revocation pursuant to Subsection (a)(10) of this section.

Endorsements. The letter of credit shall contain both of the following unrestricted endorsements:

"The drawee acknowledges that this letter of credit may not be cancelled by the surety under any circumstances without written authorization from the __________."

The statement of the Clerk of the grantor, in the following form, shall be sufficient to draw against the letter of credit upon presentment:

I (We) certify that __________ now holds a franchise to operate a cable television system within the __________, and __________ is now in material breach of its agreements with the grantor.

Use of the performance bond and letter of credit. Prior to drawing upon the letter of credit or performance bond for the purpose set forth in this Subsection (a)(6), the grantor shall notify the grantee in writing that payment is due, and the grantee shall have 10 days from the receipt of the written notice to make a full and complete payment. If the grantee does not make the payment within 10 days, the grantor may withdraw the amount due, with interest and penalties, from the letter of credit or the performance bond.

Notification of withdrawal. Within three days of a withdrawal from the letter of credit or performance bond, the grantor shall send to the grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.

Replenishment of letter of credit and performance bond. No later than 30 days after mailing to the grantee by certified mail notification of a withdrawal pursuant to Subsection (a)(6)d2 of this section, the grantee shall replenish the letter of credit or performance bond in an amount equal to the amount withdrawn unless the grantee has challenged such withdrawal and/or the basis of such withdrawal. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a violation of this article.

(7)

Liquidated damages. In order to facilitate an orderly regulatory framework, and to provide for the common interests of the grantor and the grantee, any franchise agreement executed pursuant to this article shall contain negotiated dollar amounts to serve as fixed and liquidated damages for the violation of this article or the franchise agreement. The violations of this article which are to be specified in detail in the franchise agreement shall be those for which ongoing monitoring and enforcement are unduly burdensome for the grantor and which would make impossible to determine the actual dollar value of damage to the grantor or the public. Similarly, the franchise agreement violations which are to be specified for purposes of liquidated damages shall be those which are not ordinarily capable of being cured by compensatory or punitive damages at law. It is the express purpose of this section to identify the common interests of the grantor and the grantee in such a way as to forestall resort to termination of the contract as a remedy for material breaches of the contract or this article, and to thereby protect the investment of the grantee and to ensure continuity of service for the City. The liquidated damages specified in a franchise agreement shall serve as the primary pecuniary remedy for the specified violations. However, nothing in this section shall prevent or bar the grantor from pursuing any remedies at law or in equity where a material breach of a franchise agreement persists notwithstanding the payment of liquidated damages.

(8)

Regulatory authority.

Governing requirements. At all times during the term of a franchise, the grantee shall comply with all laws, rules or regulations of the grantor, state or federal government and their regulatory agencies or commissions which are applicable to the construction and operation of the cable communications system, including, but not limited to, all laws, ordinances or regulations now in force or hereafter enacted; provided that any law, regulation or ordinance hereafter enacted shall not materially affect the rights under the franchise. Nothing in this subsection shall be deemed a waiver of grantee's right to challenge the validity of any such law, rule or regulation. The grantee shall comply with new laws and regulations, such as the Americans With Disabilities Act.

Change in law or regulation. Notwithstanding any other provisions of this article to the contrary, the grantee shall at all times comply with all laws and regulations of the local, state and federal government. If any actions of the state or federal government or any agency thereof, or of any court of competent jurisdiction upon final adjudication, substantially reduce in any way the power or authority of the grantor under this article or franchise, or if in compliance with any local, state or federal law or regulation, the grantee finds conflict with the terms of this article, the franchise, or any law or regulation of the grantor, as soon as possible following such conflict, the grantee shall notify the grantor of the point of conflict believed to exist between such law or regulation and the law or regulations of the grantor, this article and the franchise. The grantor, at its option, may notify the grantee that it wishes to negotiate those provisions which are affected in any way by such modification in regulations or statutory authority. Thereafter, the grantee shall negotiate in good faith with the City in the development of alternative provisions which shall, to the extent permitted by law, materially maintain the rights of the City as established under the terms of this article and the franchise. The City shall have the duty, based upon the results of such negotiations, to modify any of the provisions to such reasonable extent as may be necessary to carry out the full intent and purpose of this article, the franchise and the agreement reached in negotiations.

Reservation of rights for regulation. The grantor reserves the right to exercise the maximum plenary authority, as may be lawfully permissible, to regulate the cable communications system, the franchisee and the grantee. Should applicable legislative, judicial or regulatory authorities at any time permit regulation not presently permitted to the grantor, the grantor may, without approval of the grantee, engage in any such regulation as may then be permissible, whether or not contemplated by this article or the franchise, including, but not limited to, regulations regarding franchise fees, taxes, programming, rates charged to subscribers and users, consumer protection or any other similar or dissimilar matter.

Right of inspection of records. The grantor shall have the right to inspect all books, records, reports, maps, plans and financial statements of the grantee and any parent company to the extent such materials are relevant to the grantee's performance of its obligations under this article and the franchise, and other similar materials of the grantee, at any time during normal business hours upon 24 hours' prior notice to the grantee.

Right of inspection of cable facilities. The grantor shall have the right to inspect all cable facilities or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this article and other pertinent provisions of the law.

Nonexclusivity. Any franchise granted pursuant to this article shall be nonexclusive. The grantor specifically reserves the right to:

Grant at any time such additional franchises for a cable communications system as it deems appropriate; and/or

Build, operate and own such cable communications systems as it deems appropriate.

Expense reimbursement to grantor. The grantee shall pay the grantor a sum of money which will, when added to any application fees received, reimburse all reasonable costs and expenses incurred by it in connection with the granting of an initial franchise, including, but not limited to, consultant fees, attorney fees, publication fees, travel expenses and all other direct costs. To the extent allowed by law, the grantee shall pay the grantor a sum of money which will reimburse all reasonable costs and expenses incurred by the grantor in connection with the extending or renewing of a franchise, including, but not limited to, consultant fees, attorney's fees, publication fees, travel expenses and all other direct costs. The grantor shall submit a detailed schedule of all such costs. Such payment shall be made within 30 days after the grantor furnishes the grantee with a written statement of such expenses.

(9)

Reports required.

Annual reports. The grantee shall file with the grantor administrator the following reports, which shall be submitted 90 days after the end of the grantee's fiscal year:

Facilities report. An annual report setting forth the physical miles of cable plant construction, reconstruction and cable plant in operation. The report shall also indicate modifications to the headend and other areas of system operations, such as billing, converters, equipment for new services.

Financial reports. The following financial reports for the franchise area shall be submitted annually to the grantor 90 days after the end of the grantee's fiscal year:

An ownership report, indicating all persons who at any time during the preceding year controlled or benefited from an interest in the franchise of 1% or more.

An annual, fully audited and certified financial statement from the previous calendar year, including subscriber revenue from each category of service and every source of nonsubscriber revenue.

An annual list of officers and members of the board of the grantee and any parent corporation.

Operational reports. The following system and operational reports shall be submitted annually to the grantor 90 days after the end of the grantee's fiscal year:

A report on the system's technical tests and measurements as set forth in this article and in the franchise.

A report of new services added and a projection for services planned for the future.

A report on support provided by the grantee for public, educational and governmental channels, and other public benefit projects.

[d]

A compilation of the monthly reports to provide a year-end analysis.

Monthly reports. The grantee shall provide a monthly operational report which will provide a concise overview of the following system activity:

A subscriber report indicating end of the month subscriber numbers for all levels of service, an analysis of disconnections and a review of revenues from all other services.

A gross receipt report, which shall state the gross receipts by revenue category for the immediately preceding month.

A technical summary of the cable system service log, indicating the types of service problems, the length of time between detection and resolution of such problems and the action taken to correct the problems.

A statement of the current status of video production equipment provided by the grantee. The report shall also indicate maintenance issues and any equipment in need of replacement.

Additional reports. The grantee shall prepare and furnish to the grantor, at the times and in the form prescribed, such additional reports with respect to the operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the grantor in connection with this article or the franchise.

(10)

Termination. If a grantee causes or creates a material breach of a franchise agreement executed pursuant to this article, or violates the provisions of this article in a significant and material manner, the grantor may elect to terminate any franchise granted under this article. Any termination for cause shall be made by resolution of the grantor, stating that such cancellation is for cause, and the specific reasons alleged to constitute such cause, and the grantee shall have the right to appear before the grantor at a duly noticed and scheduled public meeting to present its position with regard to the finding made under this section. A material breach shall include, but shall not be limited to, the following:

Any uncured violation of a material provision of a franchise agreement or this article which is not cured within a period of 30 days following receipt of written notice of such violation by the grantee.

Any attempt to sell, transfer or dispose of the capital assets related to the cable system without giving written notice of such attempt 90 days prior to such attempt to the grantor administrator.

Any attempt to evade the provisions of this article by deceit, fraud or misrepresentation.

The actions set forth in this subsection shall only be mitigated by circumstances beyond the control of the grantee. Simple negligence, mistake or neglect shall not excuse such actions. A grantee shall at all times be solely responsible for proving the existence of circumstances beyond its control.

(11)

Rate regulation.

The City shall comply with rules of the Federal Communications Commission set forth in Subpart N (Cable Rate Regulation) of Part 76 (Cable Television Service) of Ordinance I of Title 47 of the Code of Federal Regulations regarding the regulation of cable television rates for basic service and associated equipment, as amended.

After a cable operator has submitted for review its existing rate for the basic service tier and associated equipment costs of a proposed increase in these rates, the City Clerk or the grantor designee shall post a public notice of the rates and costs, giving interested parties, including the cable operator, a reasonable opportunity to file written comments which shall be available in the office of the City Clerk for public inspection and copying during normal business hours.

The City shall comply with procedures set forth in 47 CFR 0.459 regarding confidential business information submitted by the cable operator in a rate regulation proceeding.

A cable operator which willfully or repeatedly fails to comply with a rate decision or refund order directed specifically at the cable operator shall be subject to a monetary forfeiture as determined by the City following the procedures set forth in 47 U.S.C. § 503.

§ 34-36 Programming.

[Code 1968, § 3-1007]

Concurrently with the activation of the cable communications system in the City, the grantee shall provide all services to subscribers as described in this section.

Programs; change. The system shall carry programming specified in the franchise. Any change in programs or services offered shall comply with the conditions and procedures contained in the franchise, and shall be reported to the Clerk of the grantor or other designee of the grantor at least 30 days prior to the proposed implementation. The grantee shall use its best effort to ensure diversity of programming.

Basic service tier. A basic service tier shall be offered to subscribers throughout the term of this article and the franchise, to the extent required by law.

Access. The grantee shall provide the number of access and community channels specified in the franchise agreement executed pursuant to this article. All residential subscribers who receive all or any part of the total services offered on the system shall also receive all access channels at no additional charge. These channels shall be activated upon system activation and thereafter maintained, as needed. The grantee shall establish rules and regulations for the use of City access channels which shall be approved by the grantor before implementation and thereafter shall not be altered or amended without the approval of the grantor. In preparing such rules and regulations, the grantee shall:

Provide an equal opportunity for community use of access service.

Present a needs assessment of the community to be served, and provide a plan to meet those needs.

Develop a plan to allocate to the grantor a reasonable use and fair schedule of channel time and use of equipment and facilities so that the grantor can send and receive programming fitted to its needs. Such plan shall be approved by the grantor before implementation and thereafter shall not be altered or amended without approval of the grantor.

Describe all equipment and facilities and any charges for their use.

Comply, at a minimum, with the requirements of the grantor regarding access channels.

Program guide. The grantee shall provide a program guide which shall be delivered in electronic form.

Institutional network. The grantee shall provide an institutional network as set forth in the franchise.

Emergency override. The grantee shall, without charge, provide, service and maintain public emergency transmission facilities in the City as described in the franchise.

§ 34-37 Minimum design requirements.

[Code 1968, § 3-1008]

In order to provide for a technologically advanced cable system which will satisfy the communication needs of the community, all franchise applicants shall agree to provide certain minimum design features in their applications. Nothing in this section shall be construed to limit or discourage the development of more extensive systems or better facilities and equipment. The grantor is expressly authorized to negotiate any state of the art improvements with applicants which will serve to ensure that the grantor maintains a modern cable system.

Channel capacity. All franchise applicants shall agree to construct and maintain the following minimum channel capacities:

A cable system constructed to provide sufficient bandwidth capacity so that when it is used with an appropriate converter device at a subscriber's receiver it shall enable the reception of a minimum of 54 downstream video channels and 400 megahertz on a single cable.

A cable system having at least 36 activated video channels at all times.

Allocation of public benefit channel capacity. All applicants for a franchise shall provide a percentage of system channel capacity to support the cablecasting of public, educational and governmental access programming.

Public building installations. Cable service shall be provided to every school building, fire station, City hall, community center, library, police station and other public building with not less than one outlet on each floor at no cost to the user.

Parental control devices. All franchise applicants shall make available, upon request of any subscriber, a converter or other device capable of removing from a subscriber's service both the video and audio of any channel which the subscriber considers offensive. The grantee shall inform subscribers of such capability in writing, and the appropriate device shall be installed and maintained at no additional cost to the subscriber; however, the grantee may charge a deposit for such service.

Video production capability. All franchise applicants shall purchase and maintain video production capability within the cable system for the production of local programming. Ownership of such equipment shall remain with the grantee, and the maintenance of such facilities and equipment shall be the responsibility of the grantee. Whenever it is necessary to replace equipment, the grantee shall replace such equipment with new equipment reflecting advances in the state of the art, provided that such equipment is compatible with the balance of the system. The franchise agreement shall specify the type, quality and quantity of equipment, with a cash value of the proposed equipment package. This package shall provide character generated services. The grantor reserves the right to specify the equipment which best suits the needs of the community. All grantees shall purchase and maintain such video production capability so as to be able to produce both live and videotaped programming from remote points in the cable system, including all necessary equipment to transmit upstream signals to the headend for immediate processing and retransmission downstream to subscribers. The grantor shall designate remote points for live cablecasting in the franchise agreement, which points may be changed by the grantor from time to time upon 30 days' prior written notice to the grantee.

Leased access channels. Each grantee shall at all times comply with the provisions of the Cable Act of 1984 pertaining to the availability and use of leased channel space.

§ 34-38 Guidelines for providing cable service.

[Code 1968, § 3-1009]

In addition to the minimum design requirements established in § 34-37, it is the intention of the grantor to provide minimum procedures for the delivery of cable service to subscribers as a matter of the general welfare and convenience; therefore, each applicant for a franchise shall maintain certain records, and administer certain procedures as follows:

Business office. A grantee shall maintain a reasonably convenient business office with established office hours for responding to billing or service related problems. The grantor maintains the right to vary this requirement if it is deemed advisable.

Policy statement. A grantee shall adopt and maintain a written set of rules and regulations for the conduct of its business so that, upon request, any member of the general public may receive such rules prior to subscribing for cable service. At a minimum, a grantee shall address each of the items set forth in this section in a way which satisfies all requirements stated in this section. A written notice of the availability of such polices shall be given to each subscriber at the time of initial installation.

In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the grantee shall, at its own expense and in a manner approved by the grantor engineer, replace and restore all paving, sidewalk, driveway or surfacing of any street or alley disturbed, in as good of a condition as before the work was commenced, and shall maintain the restoration in an approved condition for a period of five years.

If at any time during the existence of a franchise, the grantor shall lawfully widen, realign or otherwise alter pavement, change the grade of any water main, fire hydrant, sewer or appurtenances, the grantee and anyone acting for the grantee in connection with the use of the streets, upon reasonable notice by the grantor, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures, at its own expense.

In conduit districts, and other areas of the grantor in which telephone lines and electric utility lines are underground, all of the grantee's lines, cable and wires shall be underground.

Service disconnection. Upon receipt of a written or oral notice of a request to disconnect service, a grantee shall proceed to close the subscriber's account and remove all equipment from the subscriber's premises. Subscribers shall have the right to have cable service disconnected without charge unless otherwise specified in the FCC rules. A refund of unused service charges shall be paid to the customer within 60 days from the date of termination of service. All service disconnection requests shall be completed within 10 days of the receipt of such request, absent circumstances beyond the control of the grantee. In the case of a disconnect for nonpayment of service charges, a grantee shall not disconnect cable service for delinquent payment without first sending written notice of such pending disconnection to the delinquent subscriber at least 10 days prior to the physical disconnection of such service.

Protection of subscriber privacy. The grantee shall protect the privacy of subscribers at all times, as provided in this article and other applicable federal, state and local laws.

Theft of service. Nothing in this section shall prohibit a grantee from immediately disconnecting the service of any person who shall illegally attempt to receive cable service; however, in the event of a theft of service, a grantee shall make all reasonable efforts to ascertain that the occurrence is not the result of a prior billing problem prior to disconnection.

Prohibition against providing television services. A grantee shall not sell television or radio receiving sets or parts to its CATV subscribers, except the grantee may make repairs and service to the extent necessary to establish the validity of its CATV signal. As converters or other parts become necessary for the reception of channels, or for additional outlets of FM service, the grantee shall provide converters to all subscribers on a deposit basis, sale or rental.

(7)

Customer service standards.

Definitions. The following words, terms and phrases, when used in this subsection, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Normal business hours means the hours during which similar businesses in the City are open to serve customers. Normal business hours must include some evening hours at least one night per week and/or some weekend hours.

Normal operating conditions means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the cable system.

Service interruption means the loss of the picture or sound on one or more cable channels.

Exceptions. Nothing in this section is intended to prevent or prohibit:

The grantor and a cable operator from agreeing to customer service requirements that exceed the standards set forth in this section.

The grantor from enforcing throughout the franchise term preexisting customer service requirements that exceed the standards set forth in this section and which are contained in the current franchise agreements.

The grantor from enacting or enforcing any consumer protection law.

The establishment or enforcement of any section or regulation concerning customer service that imposes customer service requirements that exceed or address matters not addressed by the standards set forth in this section.

Customer service standards. A cable operator is subject to the following customer service standards, certified quarterly by the cable operator:

The cable operator will maintain a local toll-free or collect call telephone access line which will be available to subscribers 24 hours a day, seven days a week. Trained company representatives shall be available to respond to customer telephone inquiries during normal business hours.

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

Under normal operating conditions, telephone answer time by a company 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.

Under normal operating conditions, the customers may receive a busy signal less than 3% of the time, measured on a quarterly basis.

The customer service center and bill payment locations will be open at least during normal business hours, and will be conveniently located.

Under normal operating conditions, each of the following five standards will be set no less than 95% of the time, measured on a quarterly basis:

Standard installations will be performed seven business days after an order has been placed. Standard installations are installations which are located not more than 125 feet from the existing distribution system.

Excluding conditions beyond the control of the operator, a cable operator shall begin working on service interruptions promptly, and in no event later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem.

The appointment window for installations, service calls and other installation activities will be either a specific time or, at maximum a-four-hour block during normal business hours. The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.

[d]

A cable operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.

[e]

If a cable operator representative is running late for an appointment and will not be able to keep the appointment as scheduled, the customer will be contacted and the appointment rescheduled, as necessary, at a time which is convenient for the customer.

The cable operator 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:

Products and services offered;

Prices and options for programming services and the conditions of a subscription to programming and other services;

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 cable operator and of the municipal building.

All subscribers shall receive a monthly bill. Bills shall be clear, concise and understandable. Bills must be fully itemized including, but not limited to, basic and premium service and equipment charges. Bills shall clearly delineate all activity during the billing period, including operational charges, rebates and credits. In case of a billing dispute, the cable operator must respond to a written complaint from a subscriber within 30 days.

Refund checks shall be issued promptly, but not later than:

The customer's next billing cycle following resolution of the request, or 30 days, whichever is earlier; or

The return of the equipment supplied by the cable operator if service is terminated.

10.

Credits will be issued no later than the customer's next billing cycle following the determination that a credit is warranted.

Enforcement. The grantor may pursue any and all legal and equitable remedies against the cable operator including, but not limited to, all remedies provided under a cable operator's consent agreement with the City, for failure to comply with the act, FCC rules, any orders or determinations of the City pursuant to this section, any requirements of this section or any rules or regulations promulgated under this section. Subject to applicable law, failure to comply with the act, FCC rules, any orders or determinations of the City pursuant to this section, any requirements of this section or any rules and regulations promulgated under this section shall also be sufficient grounds for revocation or denial of renewal of a cable operator's consent agreement.

§ 34-39 Franchise renewal.

[Code 1968, § 3-1010]

Upon completion of the term of a franchise granted under this article, the grantor may, in its discretion, grant or deny renewal of the franchise of the grantee in accordance with the provisions of the cable act.

§ 34-40 Transfer of ownership.

[Code 1968, § 3-1011]

A grantee of a franchise executed pursuant to this article shall not transfer any rights granted in such franchise, or engage in a transfer of 50% or more of ownership or control without first receiving the prior written approval of the grantor. Any transfer, encumbrance or other disposition of any controlling interest in the grantee shall constitute an immediate material breach and violation of this article subjecting the franchise to termination unless written notice of such an attempt is given to the grantor at least 120 days prior to such attempted action.

§ 34-41 Purchase of cable system by grantor.

[Code 1968, § 3-1012]

If a franchise under this article is not renewed or is terminated for cause, the grantor shall have the absolute right, which right shall be made a part of each franchise agreement by reference to this section, to buy the cable system if it chooses to do so. If the grantor elects to buy the system, the price shall be determined at fair market value with no value attributed to the franchise per se but with the system valued as a going concern, not at depreciated book value. The grantor and the grantee shall each appoint an appraiser, and they shall appoint a third appraiser, or if they cannot agree on a third appraiser, a circuit judge from the appropriate jurisdiction, acting in an administrative capacity, shall appoint a third appraiser. The three appraisers shall independently evaluate the value of the system. The average of the three appraisals shall be deemed the purchase price. Each party shall pay the costs of its appraiser and one-half of the cost of the third appraiser.

§ 34-42 Removal of cable system.

[Code 1968, § 3-1013]

If a franchise terminates for any reason and the grantee has not sold or otherwise transferred ownership of the cable system to the grantor or a third party, the grantee shall forthwith remove its facilities from all public easements. If the grantee fails to take prompt action in this regard, the grantor may proceed to remove the system and charge the security fund or the grantee directly for such removal.

§ 34-43 Delegation of authority of grantor.

[Code 1968, § 3-1014]

The grantor reserves the right to delegate from time to time any of its rights or obligations under the franchise to any body or organization. Any such delegation shall be effective upon written notice to the grantee. Upon receipt of such notice, the grantee shall be bound by all terms and conditions of the delegation which are not in conflict with the franchise. Any such delegation or revocation, no matter how often made, shall not be deemed to be an amendment to the franchise or require the grantee's consent.

§ 34-44 Regional interconnect.

[Code 1968, § 3-1015]

The grantor shall retain the right to require a grantee to interconnect its cable system with any other communications facilities in the service area.

§ 34-45 Separability.

[Code 1968, § 3-1016]