[HISTORY: Adopted by the City Council of
the City of Saco 3-25-2019.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 78,
adopted 5-1-1995, as amended.
A.
This chapter shall be known as the "City of Saco Cable Television
Ordinance." It is adopted by the Municipal Officers of the City of
Saco pursuant to 30-A M.R.S.A. § 3008, and pursuant to the
home rule authority granted to municipalities by 30-A M.R.S.A. § 3001
and by the Constitution of Maine, Article VIII, Part Second.
B.
The City of Saco finds that the development of cable television systems
has the potential to provide significant benefits to the people of
the Town. Because of the complex and rapidly-changing technology associated
with cable television, the Town further finds that the public health,
safety and general welfare can best be served by establishing regulatory
powers vested in the Town. It is the intent of this chapter, and any
subsequent amendments hereto, to provide for and specify the means
to advance and protect the public interest in these matters, and any
franchise issued pursuant to this chapter shall be deemed to include
these findings as an integral part thereof.
C.
Further, it is recognized that cable television systems have the
capacity to provide entertainment and information services to the
Town's residents and institutions.
D.
For these purposes, the following goals underlie the regulations
contained herein:
(1)
Cable television should be made available to the maximum number of
Town residents at the most reasonable cost;
(2)
The system should be capable of accommodating both the present and
reasonably foreseeable future state-of-the-art cable television needs
of the Town and its citizens; and
(3)
The systems authorized by this chapter shall be responsive to the
needs and interest of the local community, and shall provide the widest
possible diversity of information sources and services to the public.
For the purposes of this chapter, the following terms, phrases,
words, abbreviations and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in
the present tense include the future; words in the plural number include
the singular number, and vice versa. The word "shall" is always mandatory
and not merely directory.
Cablecasting on the cable system's access channels for
the following purposes: noncommercial and nondiscriminatory use by
the public; carriage of noncommercial educational programs or information;
and noncommercial use for governmental purposes in accordance with
the Cable Act.
A video channel(s) which the company shall make available
to the City of Saco, without charge, for the purpose of transmitting
programming by/for members of the public, Town departments, boards
and agencies, public schools, educational, institutional, nonprofit
and similar organizations in accordance with the Cable Act.
An entity that owns or controls is owned or controlled by,
or is under common ownership with a cable operator, herein defined
as "company."
Consisting of a combination of letters and numbers, used
in reference to keyboards permitting communication in such form and
in reference to channels or programs transmitting information in such
form.
An area outage occurs when cable or equipment is damaged,
fails or otherwise malfunctions (collectively called malfunctions"),
and 10 or more subscribers receiving services from that section of
cable or that equipment receive unusable or no service as a result
of that malfunction.
The minimum service transmitted to all subscribers which
includes, at a minimum, all signals of domestic television broadcast
stations entitled to "must carry" status under FCC rules, any public,
educational and governmental programming required by a franchise agreement
to be carried on the basic tier, and any additional video programming
signals added to the basic tier by the company in its sole discretion.
Over-the-air transmission by a television station.
The Cable Communications Policy and Communications Act of
1984, as amended by the Cable Consumer Protection and Competition
Act of 1992 and the Telecommunications Act of 1996, and as further
amended.
Any video programming provided over a cable system, regardless
of service tier, including installation or rental of equipment used
for the receipt of such video programming, other than video programming
carried on the basic service tier, and video programming offered on
a pay-per-channel or pay-per-program basis.
The one-way transmission to subscribers of video programming
or other programming services, together with subscriber interaction,
if any, which is required for the selection or use of such video programming
or other programming services.
A facility serving the Town, which is owned, constructed,
installed, operated and maintained by the company, consisting of a
set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide cable
service, including video programming, to multiple subscribers within
a head-end service area as defined in accordance with § 602
of the Cable Act. 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 right-of-way; a facility of a common carrier which 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
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; or an open video system that complies
with § 653 of this title, or any facilities of any electric
utility used solely for operating its electric utility systems.
Programming (exclusive of broadcast signals) carried on the
cable system.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a high
definition television channel as defined by FCC regulations.
Any person or persons owning, controlling, operating, managing
or leasing a cable system within the Town, pursuant to this chapter,
and pursuant to any franchise granted to it by the Town. This term
shall include any lawful successor(s) to the interest of such person
or persons where consent to such successor(s) is approved under the
provisions of this chapter and under any applicable terms of the franchise
agreement entered into pursuant to this chapter.
That point when the company has provided written documentation
to the Town that a cable system serving the City of Saco has been
fully upgraded in accordance with any applicable requirements of this
chapter and a franchise agreement, and service has been made available
to subscribers and potential subscribers pursuant to the franchise
agreement.
Any person or entity who or which directly or indirectly
works for or is under the direction of "the company" for the purpose
of installation or repair of any portion of the company's cable
system in the Town.
A special tuner or device attached to the subscriber's
television set which expands reception capacity and/or unscrambles
coded signals distributed over the cable system.
The entity or entities which may be designated from time
to time by the Town to provide PEG access to the residents of the
City of Saco.
A channel over which signals travel from the cable system
headend or sub-headend to an authorized recipient of programming.
Signals traveling from a cable system distribution point
to an authorized location.
The interconnection between each home or building and the
feeder line of the cable system.
The Federal Communications Commission or any successor agency.
The cable, connected to trunk cable, from which cable television
signal service is distributed to subscribers, as distinguished from
trunk cable (which distributes cable television service throughout
the franchise area) and drop cable.
The nonexclusive cable television license to be granted to
the company to include the right, privilege and franchise to construct,
operate and maintain a cable system, and appurtenances or parts thereof,
in the streets, roads, alleys, and other public ways of the Town.
The contract entered into between the company and the Town
governing the terms and conditions of the company's use of the
franchise granted to the company.
The City Council of the City of Saco.
Revenue of any form or kind received by the company from
the carriage of cable service, including, without limitation the distribution
of any cable service over the system; basic service monthly fees;
all other cable service fees; fees paid for pay and/or pay-per-view
services, installation, reconnection, downgrade, upgrade and any other
similar fees; fees paid for channels designated for commercial use;
converter, remote control and other equipment rentals, and/or leases
and/or sales; all home shopping service(s) revenues; and advertising
revenues. Gross annual revenue shall not include any taxes or fees
other than franchise fees on services furnished by the company imposed
directly on any subscriber or user by any governmental unit and collected
by the company for such governmental unit. In the event that an affiliate
is responsible for advertising on the cable system in the Town, advertising
revenues shall be deemed to be the pro-rata portion of advertising
revenues excluding commissions and/or applicable agency fees, paid
to the company by an affiliate for said affiliate's use of the
cable system for the carriage of advertising. It is the intention
of the parties here to that gross annual revenues shall only include
such revenue of affiliates and/or persons relating to the provision
of cable service over the cable system and not the gross revenues
of any such affiliate(s) and/or person(s) itself, where unrelated
to cable services. Gross annual revenue shall be computed in accordance
with generally accepted accounting principles.
A company owned or leased facility through which broadcast
and cablecast signals are electronically acquired, translated, or
modified for distribution over the cable system.
Any service that offers to subscribers the capability of
both transmitting and receiving signals of any kind.
A video and/or audio or data channel which the company shall
make available pursuant to § 612 of the Cable Act.
A connection to the cable system which is provided to allow
for live or recorded programming to be transmitted from that location
upstream to the headend and from there downstream to the subscribers
over one or more access channels, also referred to in this agreement
as a return feed.
Services that the company may make available to all subscribers
generally.
An interior cable connection that connects a subscriber or
user to the cable system.
When used in reference to the company, any person holding
direct or indirect ownership or control of 30% or more of the rights
of control of the company; and any person holding such ownership or
control of a parent to the company.
Optional additional program services, provided to subscribers
at a monthly charge in addition to the charge for basic service.
Programming delivered for a fee or charge to subscribers
on a per-program or time basis, in addition to the charge or fee to
subscribers for basic service, or for such other service tier required
by applicable law.
The acronym for public, educational and governmental, used
in conjunction with access channels, support and facilities.
Any corporation, partnership, limited partnership, association,
trust, organization, other business entity, individual or group of
individuals acting in concert.
All state accredited public schools, police and fire stations,
public libraries, Town Hall, and other public buildings owned or leased
by the Town, but shall not include buildings owned by the Town but
leased to third parties or buildings such as storage facilities at
which government employees are not regularly stationed.
Any transmission of electromagnetic or optical energy that
carries cable services from one location to another.
The State of Maine.
The surface of, and the space above and below, any public
street, highway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other public right-of-way,
including, but not limited to, public utility easements, dedicated
utility strips, or rights-of-way dedicated for compatible uses and
any temporary or permanent fixtures or improvements located thereon
now or hereafter held by the Town in the Town which shall entitle
the company to the use thereof for the purpose of installing, operating,
repairing, and maintaining the cable system. "Street" or "public way"
shall also mean any easement now or hereafter held by the Town within
the Town for the purpose of public travel, or for utility or public
service use dedicated for public travel, or for utility or public
service use dedicated for compatible uses, and shall include other
easements or rights-of-way as shall within their proper use and meaning
entitle the company to the use thereof for the purposes of installing
or transmitting the company's cable service or other service
over poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be
ordinarily necessary and pertinent to the cable system. Reference
herein to "public way" or "street" shall not be construed to be a
representation or guarantee by the Town that its property rights are
sufficient to permit its use for any purpose, or that the Town shall
gain or be permitted to exercise any rights to use property in the
Town greater than those already possessed by the Town.
A signed distribution point for part of the cable system
linked to the headend by fiber optic cable, coaxial supertrunk or
microwave, and also referred to as a "hub."
Any person, firm, corporation, or other entity who or which
elects to subscribe to for any purpose, a cable service provided by
the company by means of, or in connection with, the cable television
system.
The 750 MHz bi-directional-capable network to be owned and
operated by the company, over which cable service(s) can be transmitted
to subscribers.
The City of Saco organized and existing under the laws of
the State of Maine and all territory within its existing and future
territorial corporate limits.
The ability to transmit audio and video signals upstream
and downstream on the cable system.
A channel over which signals travel from an authorized location
to a cable system distribution point.
Signals traveling from subscribers or other originating points
on the cable system to a cable distribution point.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
No person, firm or corporation shall install, maintain or operate
within the Town or any of its public ways or streets or other public
areas any equipment or facilities for the operation of a cable system
unless a franchise agreement authorizing the use of said public ways
or streets or areas has first been obtained pursuant to the provisions
of this chapter and unless said franchise agreement is in full force
and effect.
A.
The Municipal Officers of the Town may enter into franchise agreements
on such terms, conditions and fees as are in the best interest of
the Town and its residents with one or more cable companies for the
operation of a cable system within the Town.
B.
Prior to issuing a request for proposals to any cable company for
franchise agreements or renewals, the Town shall hold a public hearing
or conduct some other process to determine any special local needs
or interests with respect to cable service and shall allow for a period
of public comment on the request for proposals.
C.
Franchise agreement applications, including renewal applications,
and any submittals in response to a request for proposals or solicitation
of bids and related documents, are public records. Upon the filing
of such documents, the Town shall provide reasonable notice to the
public that such documents are open to public inspection during reasonable
hours.
D.
Each franchise agreement between the Town and a company shall contain
but is not limited to, the following provisions:
(1)
A statement of the area or areas to be served by the company;
(2)
A line extension policy;
(3)
A provision for renewal, the term of which may not exceed 15 years;
(4)
Procedures for the investigation and resolution of subscriber complaints
by the company;
(5)
An agreement to comply with the requirements of 30-A M.R.S.A. § 3010
regarding consumer rights and protection and any amendments thereto;
(6)
A franchise fee to be paid by the company to the Town in accordance with § 78-9 of this chapter;
(7)
A provision for access to, and facilities to make use of, one or
more local PEG access channels;
(8)
A provision for the assessment of reasonable fees to defray the costs
of public notice, advertising and other expenses incurred by the Town
in acting upon applications for initial and renewal franchise agreements;
(9)
A provision whereby the company agrees to defend, indemnify and hold
harmless the Town and its agents from claims and liabilities arising
out of the company's construction, ownership, operation, maintenance,
repair and control of the cable system; and
(10)
Any other terms and conditions that are in the best interests of
the Town.
A.
Right to grant additional franchises. Town expressly reserves the
right to grant other such franchise agreements in the City of Saco
on such terms as it deems appropriate and to operate a Town- owned
cable system.
B.
Eminent domain. No privilege or power of eminent domain is bestowed
upon a company by the granting of a franchise.
C.
Exercise of police power. All rights and privileges granted in any
franchise agreement are subject to the police power of the Town to
adopt and enforce local laws, ordinances, rules and regulations necessary
to the health, safety and general welfare of the public. Expressly
reserved to the Town is the right to adopt, in addition to the provisions
of any franchise agreement, this chapter and any other existing laws,
ordinances and regulations (collectively "laws"), such additional
laws as it may find necessary in the exercise of its police power.
Any conflict between the terms of any franchise agreement and any
present or future exercise of the Town's police and regulatory
powers shall be resolved in favor of the latter.
D.
Use of public ways. The right to use and occupy the streets, public
ways and public places granted in any franchise agreement shall not
be exclusive, and the Town reserves the right to grant similar or
other uses of the said streets, public ways and public places to any
persons at any time during the term of any franchise agreement.
E.
Conflict with public works. The rights and privileges granted to
a company in any franchise agreement shall not be in preference or
hindrance to the right of the Town or any other governmental agency,
improvement district or other authority having jurisdiction, to perform
or carry on any public works or public improvement. Should a company's
cable system in any way interfere with the construction, maintenance
or repair of such public works or improvements, the company shall,
at its own expense, protect or relocate its cable system or part thereof,
as directed by the Town or other authority having jurisdiction.
F.
Removal and relocation. The Town shall have the power at any time
to order and require a company to remove or relocate any pole, wire,
cable or other structure machinery or equipment located within a public
way that is dangerous to life or property. In the event that a company,
after notice, fails or refuses to act within a reasonable time, the
Town shall have the power to remove or relocate the same at the sole
cost and expense of the company.
A.
Performance Bond to Town. Concurrent with the award of a franchise to it, a company shall file with the Town Clerk and shall thereafter annually during the entire term of such franchise maintain in full force and effect at its own cost and expense a performance bond in the amount of at least $15,000 to guarantee the faithful performance by the company of all of its obligations under its franchise agreement. The performance bond shall be so conditioned that in the event that the company shall breach any one or more material provisions of this chapter or of the franchise agreement and subsequent to any notice and opportunity to cure provision of this chapter and/or the franchise agreement, the Town may recover from the surety any penalties assessed in accordance with § 78-10 of this chapter and any damages or costs suffered or incurred by the Town as a consequence of such breach. Said conditions shall be a continuing obligation during the entire term of the franchise agreement. Not less than 30 days' prior notice to the Town shall be provided of the company's or the surety's intention to cancel, materially change, or not to renew the performance bond or security fund. In the event that the Town recovers against any portion of the performance bond, the company shall be required to replenish the original bond in an amount equal to the amount recovered by the Town within 30 days. Failure to post an additional bond on a timely basis shall constitute a violation of a material provision of the franchise agreement.
B.
Insurance. The company shall maintain during the full term of the
franchise agreement such insurance as will protect it and Town from
any claims which may arise directly or indirectly or result from the
company's ownership, construction, repair, operation or maintenance
of the company's cable system serving the City of Saco, whether
such activities are performed by the company, or by anyone for whose
acts the company may be liable, under the following policies:
(1)
Workers' compensation and any other legally required employee
benefits, shall be supplied in such amounts as required by law;
(2)
Property insurance, all risk, replacement cost basis, on all insurable
company assets in the Town;
(3)
Commercial general liability insurance shall be supplied in the following
amount: combined single limit for bodily injury, personal injury,
death or property damage in the amount of at least $3,000,000 per
occurrence;
(4)
Excess liability (in umbrella form) in the amount of at least $5,000,000;
and
(5)
Automobile liability insurance in the amount of at least $1,000,000
per occurrence.
C.
Nonwaiver. Neither the provisions of this section, nor any bonds
accepted by the Town pursuant hereto, nor any damage recovered by
the Town there under, shall be construed to excuse unfaithful performance
by the company or limit the liability of the company under this chapter
or the franchise agreement for damages, either to the full amount
of the bond or otherwise.
A.
Any application for a cable television franchise agreement in the Town must contain the following information, except that in the case of a renewal franchise agreement, only the information listed under this Subsection A(1) through (2)(c) shall be required:
(1)
The name, address, and telephone, number of the applicant.
(2)
The most recent 10-Q or 10-K of the company or its ultimate parent
company as filed with the Securities and Exchange Commission. In the
event the company does not, at the time of application, file 10-Q
or 10-K filings with the Securities and Exchange Commission, it shall
instead file with the Town the following: A detailed statement of
the corporate or other business entity organization of the applicant,
and any other information required by the Town, including without
limitation:
(a)
The names and business addresses of all officers and directors
of the applicant.
(b)
The names and business addresses of all officers, persons and
entities having, controlling, or being entitled to have or control
15% or more of the ownership of the applicant and each parent, affiliate
or subsidiary of the applicant and the respective ownership share
of each such person or entity.
(c)
The names and addresses of any parent, affiliate or subsidiary
of the applicant, namely, any other business entity owning or controlling
applicant in whole or in part or owned or controlled in whole or in
part by the applicant, and a statement of the nature of any such parent,
affiliate or subsidiary business entity, including but not limited
to cable systems owned or controlled by the applicant, its parent,
affiliate and subsidiary and the areas served thereby.
(d)
A detailed description of all previous experience of the applicant
in providing cable service and in related or similar fields.
(e)
A detailed and complete financial statement of the applicant,
its parents, affiliates and its subsidiaries, prepared by a certified
public accountant, for the fiscal year next preceding the date of
the application hereunder, or a letter or other acceptable evidence
in writing from a recognized lending institution or funding source,
addressed to both the applicant and the Town's City Council,
setting forth the basis for a study performed by such lending institution
or funding source to provide whatever capital shall be required by
the applicant to construct and operate the proposed cable system in
the Town, or a statement from a certified public accountant certifying
that the applicant has available sufficient free, net and uncommitted
cash resources to construct and operate the proposed cable system
in the Town.
(3)
In the case of an application for an initial franchise for a new
cable system serving the City of Saco, the applicant shall provide
a detailed description of the proposed plan of operation of the applicant,
which shall include, but not be limited to, the following:
(a)
A detailed map indicating all areas proposed to be served, and
a proposed construction time schedule for the installation of all
equipment necessary to become operational throughout the entire area
to be served, and the time of commencement of construction and anticipated
operation date.
(b)
A statement or schedule setting forth all proposed classifications
of rates and charges to be made against subscribers and all rates
and charges to be made against subscribers and all rates and charges
as to each of said classifications, including installation charges
and service charges and deposit agreement.
(c)
A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those contained in the FCC's regulations, 47 C.F.R. §§ 76.601, et seq. as may be amended from time to time, and shall in addition comply with § 78-13 herein.
(d)
A copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber
and between the applicant and any lessee of any channel, including
provisions for reimbursement in the event of interruption of service.
(e)
A detailed statement setting forth in its entirety any and all
agreements and undertakings, whether formal or informal, written,
oral, or implied, existing or proposed to exist between the applicant
and any persons, firm, or corporation which materially relate or pertain
to or depend upon the application and the granting of the contract.
(f)
A detailed statement setting forth in its entirety the proposed
cable system design. Such statement shall include proposals concerning
system architecture, channel capacity, channel uses, access, programming
facilities, studio location, point to point service, two-way service,
subscriber privacy, and interconnection.
(g)
Such other information as required by the Town at the time of
the franchise application.
A.
Term. Any franchise awarded by the City Council under this chapter
shall be for a term of not more than 15 years.
B.
Renewal. Any renewal of a franchise agreement shall be upon such
terms and conditions as the City Council and the company may mutually
agree upon in accordance with the Cable Act and applicable federal
law. Such renewal shall be for a period of not more than 15 years
from the expiration of the previous franchise.
C.
Public hearing. Before authorizing the issuance of any franchise
or renewal of a franchise, the City Council shall review, in accordance
with federal law, the applicant's legal, financial and technical
qualifications, the proposed agreement's ability to meet current
and future cable-related needs and interests of the Town in light
of the costs of meeting those needs and interests, and the adequacy
and feasibility of the applicant's qualifications to operate
a cable system within the Town, and shall conduct a public hearing
thereon with at least seven days advertised notice prior to said public
hearing. Such public hearing shall provide a reasonable opportunity
for public input on the proposed franchise agreement or renewal.
D.
Requests for information. Any company operating a cable system in
the Town shall maintain adequate personnel and resources to respond
to requests from the Town for renewal information and review of draft
franchise agreements in a timely manner. Failure to respond in a timely
manner shall be considered a violation of this chapter.
A.
Franchise fee. As compensation for the rights and privileges granted
by any franchise awarded pursuant to the provisions of this chapter,
the company shall pay to Town a franchise fee based on a percentage
of the company's gross annual revenues in accordance with Federal
Law. The franchise fee may be changed by Town on 90 days' notice
to the company, but not more frequently than once each calendar year
to an amount within the then-applicable maximum allowed under federal
law.
B.
Method of computation. Payments due the Town under the terms of the chapter
shall be computed quarterly as of March 31, June 30, September 30
and December 31 for the preceding three months and shall be paid on
or before the 45th calendar day from each said computation date at
the office of the Town Treasurer during regular business hours. The
Town shall be furnished a statement with each payment, prepared by
a financial representative of the company, and verified as correct,
reflecting the total amount of gross annual revenues generated by
all activities within the Town, and the above charges, deductions
and computations, for the three-month payment period covered by the
payment. The company shall prepare and maintain financial information
and records in accordance with generally accepted accounting principles
and generally accepted auditing standards in the cable television
industry. At Town's option, the information provided by the company
shall be subject to audit by an outside firm of certified public accountants
selected by Town. Any such audit shall be at Town's expense except
unless such audit shall disclose an underpayment of any franchise
fees of more than 4% payable for the period of the audit, in which
event the company shall reimburse Town for the expense of such audit.
Repeated failure to pay the franchise fee on a timely basis may be
grounds for revocation of the franchise under this chapter. Interest
shall accrue on any and all overdue franchise fees at the rate of
1-1/2% per month simple interest.
C.
Rights of recomputation. No acceptance of any payment shall be construed
as a release or as an accord and satisfaction of any claim the Town
may have for further or additional sums payable as a franchise fee
under this chapter or for the performance of any other obligation
hereunder. However, there shall be an accord and satisfaction with
respect to any payment not subject to an audit within 36 months following
the close of the fiscal year to which such payment relates.
A.
Assessment. If a company fails to observe any obligation under this chapter, the Town may assess the company a monetary penalty in accordance with the schedule of penalties set forth in Subsection H through L below. Such assessment shall not constitute a waiver by Town of any other right or remedy it may have under this chapter or the franchise agreement, or under any other applicable law, including, without limitation, its right to recover from the company such additional damages, losses, costs and expenses as may have been suffered or incurred by Town by reason of or arising out of such breach of this chapter or the franchise agreement; provided, that any penalties collected by Town from the company pursuant hereto shall be applied against, and reduce accordingly, the amount of any recoveries due Town pursuant to this sentence for the failure to perform for which such penalties were assessed.
B.
Notification. Upon Town's assessing a penalty pursuant to Subsection A above, notice of such assessment shall be sent to the company, with a concise statement of the reasons therefore.
C.
Procedures.
(1)
Within 10 days after receipt of a notice pursuant to Subsection B above, the company may request a hearing before the City Council or his/her designee. Such hearing shall be held within 30 days after receipt of the request therefore. The pendency of a request of hearing shall suspend payment of the penalty until 10 days after receipt by the company of the decision of the City Council or designee confirming the penalty in whole or in part.
(2)
During the public hearing, the company shall have the right to appear
and be heard, including the opportunity to present evidence, question
witnesses, if any, and the hearing shall follow the procedures set
forth for public hearings before the City Council.
(3)
Following the hearing, the City Council shall determine whether a
failure or violation has occurred; whether such failure or violation
is excusable; and whether such failure or violation has been or will
be cured by the company; and the appropriate remedy for the failure
or violation.
(4)
If the City Council determines that such failure has not occurred,
or that such failure either has been or will be cured in a manner
and in accordance with a reasonable schedule satisfactory to the City
Council or that the failure is excusable, such determination shall
conclude the matter, unless the company fails to comply with the schedule
for cure.
(5)
The company shall have the right to appeal any decision of the City
Council under this section within 30 days of the date of the decision
or ruling to the Maine Superior Court pursuant to M.R. Civ. P. 80B.
E.
Default. Subsequent to the notice and opportunity to cure provision herein, upon failure of the company to make timely payment of an assessed penalty, Town may recover the amount of any such penalty from the performance bond or security fund pursuant to § 78-6A above. Failure of the company to make timely payment of an assessed penalty is a violation of this chapter.
F.
Disposition. Amounts received by Town as penalties assessed against
a company may be used by Town for any purpose it deems fit.
G.
Schedule of penalties. Pursuant to Subsections A, B and C above, the following monetary penalties shall apply, and liability therefore shall accrue from the date of receipt of notice pursuant to Subsection B above, and upon failure to cure within the time period specified below, if any opportunity to cure is provided.
H.
Minor per-day penalty. The penalty for the following violations shall
be $50 per day until the violation is cured:
(1)
Abandonment of service or a portion of that service without having
obtained the written consent of the City Council or having provided
the Town with at least six months' prior written notice of abandonment.
(2)
Failure to maintain the company's required insurance pursuant to § 78-6B with the penalty beginning 30 days after the company receives written notification of the violation.
(3)
Failure to make timely payment of the franchise fee pursuant to § 78-9 with the penalty beginning 30 days after the company receives written notification of the violation.
(4)
Violation of the privacy restrictions in § 78-12G(4) of this chapter. This penalty shall be assessed with the penalty beginning seven days after the company receives written notification of the violation.
(5)
Failure to restore damaged property within the specified period pursuant to § 78-11K with the penalty beginning five days after the company receives written notification of the violation.
(6)
Failure to make and maintain records as required by § 78-13F with the penalty beginning 30 days after the company receives written notification of the violation. This penalty shall be assessed for each such record not maintained.
(7)
Failure to obtain and maintain the performance bond or security fund pursuant to § 78-6A with the penalty beginning 30 days after the company receives written notification of the violation.
I.
Per subscriber penalty. The penalty for the following violations
shall be $5 per subscriber affected by the violation per day until
the violation is cured.
(1)
Failure to respond to a request for repair or adjustment within the time required by § 78-13D. This penalty shall begin 24 hours after the Town notifies the company in writing of the violation.
(2)
Failure to commence service to a subscriber within the time required by § 78-14 beginning two days after the Town notifies the company in writing of the violation.
(3)
Failure to pay a refund due a subscriber upon termination within the time required by § 78-15F. This penalty shall begin five days after the Town notifies the company in writing of the violation.
(4)
Failure to respond to a billing complaint within the time required by § 78-16C. This penalty shall begin two days after the Town notifies the company in writing of the violation.
J.
Major per day penalty. The penalty shall be $500 for the following
violations beginning 60 days after the Town notifies the company in
writing of the violation until the violation is cured.
(1)
Failure to complete any system rebuild as required by § 78-11A and the terms of the franchise agreement. This penalty shall be assessed per day until compliance is achieved.
(2)
Failure to make service available to unserved areas within the time
required by this chapter and the terms of the franchise agreement.
This penalty shall be assessed per day until compliance is achieved.
(3)
Failure to provide access channels, facilities and equipment funding
as required by this chapter and the terms of the franchise agreement.
This penalty shall be assessed per day until compliance.
K.
Violation of subscriber privacy. The fine for a violation of § 78-12G(5) is $1,000 per occurrence of selling or disclosing subscriber lists, viewing habits or personally identifiable information (and not per day or per affected subscriber).
L.
Failure to provide emergency override capabilities. The cable system shall incorporate emergency audio override capabilities in accordance with FCC Emergency Alert System (EAS) standards and as required by § 78-11C. The fine for a failure of the system to perform as described in the event of a public emergency or vital public information situation, shall be $1,000 assessed per occurrence, except to the extent the cable system is rendered nonfunctional due to damage caused by factors outside of the company's reasonable control.
M.
Force majeure. The company shall not be assessed any penalties for
any delay or failure to perform its obligations under the chapter
if doing so is prevented by Act of God, the inability to secure materials
despite the use of all commercially reasonable efforts by the company,
flood, storm, fire, explosions, strikes, riots, wars whether or not
declared, insurrections, epidemics, or any law, rule or act of any
court of competent jurisdiction or instrumentality of government or
any other occurrence outside of the control of the company when using
all commercially reasonable efforts.
N.
Further recourse. In addition to the foregoing penalties, upon the
failure, refusal or neglect of the company to cause any work or other
act required by law or by this chapter or the franchise agreement
to be properly completed in, on, over or under any street or public
way within any time prescribed, Town may (but shall not be required
to) cause such work or other act to be performed or completed in whole
or in part and upon so doing shall submit to the company an itemized
statement of the costs thereof. The company shall, within 30 days
after receipt of such statement, pay to Town the entire amount thereof.
A.
Design. Except as otherwise provided for in the franchise agreement,
any cable system serving the City of Saco shall in any event be designed
and built for technical quality in conformance with the highest state
of the art in the cable television industry for cable systems of comparable
size. Not later than one year from the effective date of the franchise
agreement the cable system shall be designed and built for operation
at a minimum of 750 MHz and a minimum 80 video channel capacity, with
full bi-directional capability. All downstream and upstream channels
shall be activated by such date.
B.
Emergency power. The cable system shall incorporate equipment capable
of providing standby powering of the headend and all sub-headends
for a minimum of four hours.
C.
Emergency override. The cable system shall incorporate emergency
audio override capabilities in accordance with FCC Emergency Alert
System (EAS) standards.
D.
Subscribers' antennae. Notwithstanding a required disconnection
of a subscriber's existing broadcast antennae and down leads
to receivers connected to the cable system, the company shall not
remove or suggest to the subscriber the removal of such antennae and
down leads. The company shall furnish to each subscriber so requesting,
at reasonable cost, an A/B switch permitting the subscriber to change
from cable reception to home antenna reception, and back, at the option
of the subscriber. Installation of such switches at the time of initial
installation of service to a subscriber shall be without charge other
than for such purchase cost.
E.
Switching. The headend or sub-headend shall have the capability of
accepting programming on the upstream channels of the cable system
and simultaneously transmitting such programming on the downstream
channels of the cable system.
F.
VCR/cable compatibility. In order that subscribers to the cable system
have the capability to simultaneously view and tape any channel and
set their VCR to record multiple channels remotely, the company shall
provide to any subscriber, upon request, an A/B switch, installed
at reasonable cost.
G.
General construction requirements. In the construction, reconstruction,
maintenance and repair of the cable system, the company shall utilize
materials of good and durable quality and shall perform or cause to
be performed all work so associated with the system in a safe, thorough
and reliable manner.
H.
Live programming origination points. To facilitate live programming
within the City of Saco each company shall install origination points
at the public buildings and public locations as are designated in
the franchise agreement.
I.
Compliance with regulations. All work, including all working conditions
and facilities, associated with the construction, operation, maintenance,
repair and removal of the cable system shall comply with:
J.
Town rights. Town reserves the right to inspect all construction
and installation work and to make such tests as it shall deem necessary
to ensure compliance with applicable laws, codes, ordinances and regulations
and with provisions of this chapter and the applicable franchise agreement,
and may order corrections of any violations.
K.
Restoration of damage. The company, at its sole expense, shall restore
all damage to property, both public and private, caused by the construction,
operation, maintenance or repair of the cable system, so as to return
the damaged property to a condition as good as before the damage was
done. Such restoration shall be made as soon as practicable after
completion of work necessitating the restoration, and shall be done
in a manner approved by the owner or tenant in possession. In no event
shall such restoration be made later than 10 days, weather permitting
and subject to force majeure, after the company's receipt of
notification from the owner of the property so damaged unless otherwise
mutually agreed by the company and the property owner; provided, that
if any such damage involves streets, water-mains, storm or sanitary
sewers, or other public facilities, such damage shall be repaired
within 48 hours or as soon as practicable. If the company fails to
make such restoration on a timely basis, Town may fix a reasonable
time for such restoration and repairs and shall notify the company
in writing of the restoration and repairs required and the time fixed
for performance hereof. Upon failure of the company to comply within
the specified time period, Town may cause proper restoration and repairs
to be made and the company shall pay the reasonable expense of such
work upon demand by Town.
L.
Identification. Each company shall ensure that all of its vehicles
are clearly identified to the general public as being associated with
the company, and that all of its employees, and the employees of any
agents or contractors, who enter upon private property wear an employee
identification card issued by the company, which card shall bear a
picture of said employee and shall be worn in a conspicuous place.
M.
Public ways hazards. Any openings or obstructions in streets or other
municipal or public property made by any company shall be guarded
and protected at all times by the placement of adequate barriers,
fences, boarding or other protective devices at the sole expense of
the company. During the periods of dusk and darkness, the protective
devices shall be clearly designated by warning lights.
N.
Location of physical facilities. Within 60 days after the effective
date of any franchise agreement, the company shall provide Town with
strand maps of the City of Saco clearly showing the location of all
distribution lines (indicating underground, where applicable), tower,
antennae, receivers, headend, and sub-head ends. Revised and corrected
strand maps shall be submitted to Town not later than 90 days after
such changes or additions are made.
O.
Cable location. Insofar as practicable, the distribution system (trunk
and feeder cable) shall run along public rights-of-way. Where the
cable or wire facilities of all public utilities are installed underground,
the company shall install its cable distribution system underground.
Vaults and pedestals shall be suitably landscaped, such landscaping
to be subject to the approval of the owner or tenant in possession,
which approval shall not be unreasonably withheld. In all areas where
public utility lines are aerially placed, if subsequently during the
term of the franchise agreement all such utility lines are relocated
underground pursuant to applicable law under the Town's police
powers, the company shall similarly relocate its cable distribution
system underground at its sole expense. Wherever possible, the distribution
system shall use the existing facilities of the public utilities.
Poles shall not be installed for the sole purpose of supporting a
portion of the distribution system without written justification and
approval of Town, which approval shall not be unreasonably withheld,
pursuant to Town's laws, ordinances, rules and regulations.
P.
Location of construction. All lines, cables and distribution structure,
and equipment, including poles and towers, erected, installed or maintained
by any company within the City of Saco shall be located so as not
to obstruct or interfere with the proper use of streets and public
ways and to cause minimum interference with the rights of property
owners who abut any of the said streets and public ways, and not to
interfere with existing public utility installations. A company shall
not place new poles, towers or other obstructions in streets or public
ways, or relocate existing poles, towers or other obstructions, without
first obtaining Town's approval, which approval shall not be
unreasonably withheld. A company shall have no vested right in any
location, and the company shall remove such construction at its own
cost and expense whenever the same restricts or obstructs or interferes
with the operation or location or any future operation or location
of said streets or public ways.
Q.
Grade or location changes. If at any time during the term of a franchise
agreement Town shall elect to alter, or change the grade or location
of any street, or shall engage in any construction, reconstruction,
widening, repairs or other public works in, on or under the streets,
any company shall, upon reasonable notice by Town, remove and relocate
its poles, wires, cables, conduits, manholes and other fixtures ("fixtures")
at its own expense, and in each instance comply with the Town's
standards and specifications.
R.
No interference. A company shall not place fixtures above or below
ground where the same will interfere with any gas, electricity, telephone
fixtures, water hydrants, or other utility use, and all such fixtures
placed in or upon any street shall be so placed as to comply with
all requirements of Town or other applicable authority, and fully
comply with local regulations, including zoning ordinances. Each cable
system shall be constructed, operated and maintained so that there
will be no objectionable interference with television reception, radio
reception, telephone communications or other electronic installations
in the City of Saco or with the operation of any public fire, police,
rescue or safety communications system. Should any such interference
occur, the company shall promptly eliminate it.
S.
Temporary relocation. A company shall, on request of any person holding
a permit issued by Town or other appropriate authority, temporarily
move its fixtures to permit the moving or erection of buildings or
other objects, with the expense of any such temporary removal to be
paid in advance by the person requesting same, and the company shall
be given reasonable notice to arrange for such temporary relocation.
A company shall bear any expense to temporarily move its fixtures
to permit the moving or erection of Town-owned or -constructed buildings
or other public infrastructure.
T.
Tree trimming. Each company shall have the authority to trim any
trees upon and overhanging Town's streets or public ways to the
minimum extent necessary to prevent the branches of such trees from
coming in contact with the wires and cables of the cable system; provided
that, except for incidental trimming done by company employees in
the course of performing their other duties, any tree trimming done
by the company shall be subject, in all respects, to Town's prior
approval by the Road Commissioner. Except in an emergency, the company
will notify the abutting property owner(s) prior to starting tree
trimming work. In performing tree trimming, the company shall employ
best management practices, shall use its best efforts to avoid any
unnecessary damage or injury to trees, and shall comply in all respects
with any Town ordinances governing tree trimming. Except for incidental
trimming performed by a company's employees in the course of
performing their other duties, Town may elect to perform tree trimming
directly or by agents under Town's supervision and direction,
at the company's expense.
U.
Drops. In areas where the cable distribution is located underground,
drop connections to subscriber's structure shall be underground;
in other areas the drop connection shall be aerial unless the subscriber
requests underground installation and elects to pay the cost thereof.
Insofar as practicable, the company shall adhere to the subscriber's
desire with regard to point of entry of the drop connection into the
structure. Within the subscriber's structure, drop or cable runs
shall be made as unobtrusively as possible. Each drop shall be grounded
at the subscriber's structure, or, at the company's option,
at such other location as may be permitted by the National Electrical
Safety Code.
V.
Zoning and building codes. Any and all construction performed by
or under the auspices of the company, and any and all facilities used
or operated by the company, shall comply with all applicable zoning
and building ordinances, codes or laws of Town.
W.
Contractors, subcontractors and affiliates. All contractors, subcontractors
and affiliates of a company must be properly licensed under all applicable
federal, state and local laws and regulations. Each company shall
be solely and completely responsible for all acts or omissions of
any such contractor, subcontractor or affiliate, or any employee or
agent of any such contractor, subcontractor or affiliate in the construction,
reconstruction, installation, maintenance, operation or removal of
the company's cable system.
X.
Completion of work by Town. Upon failure of a company to commence,
pursue or complete any work required by this chapter, other applicable
law or by the provisions of the franchise agreement in any street
or other public place within the time prescribed and to the satisfaction
of the Town, Town may, at its option, cause such work to be done with
reasonable expenditures therefore and the company shall pay to the
Town the cost thereof in the itemized amounts reported by the Town
to the company within 30 days after receipt of such itemized report.
Y.
Lockout key. Each company shall make available to any subscribers
so requesting, for lease or sale, a "parental control device" or "lockout
key" which will permit the subscriber, at his or her option, to eliminate
comprehensible reception of any or all of the basic service or pay
cable channels. If requested, a lockout key will be installed within
20 days of request.
A.
Each company shall construct, maintain and operate its cable system
safely and render efficient service to subscribers during the term
of any franchise.
B.
Each company shall construct, upgrade, install, operate, maintain
and remove its cable system in conformance with Occupational Safety
and Health Administration regulations, the Maine Electrical Code,
the National Electric Code, the NCTA Safety Manual, the National Electric
Safety Code, the Bell Telephone System Code of Pole Line Construction,
the rules and regulations of the FCC, all building and zoning codes,
and all land use restrictions as they may now exist or may be amended
or adopted hereafter.
C.
Any tower constructed for use in a company's cable system shall
comply with the standards contained in "Structural Standards for Steel
Antenna Towers and Antenna Supporting Structures," TIA/EIA-222-F as
published by the Telecommunications Industry Association, 2500 Wilson
Blvd., Arlington, VA 22201.
D.
Installation and physical dimensions of any tower constructed for
use in a company's cable system shall comply with all appropriate
Federal Aviation Agency regulations, including, but not limited to,
"Objects Affecting Navigable Airspace," 14 C.F.R. 77.1 et seq., as
they now exist or may be amended from time to time.
E.
Any antenna structure used, in a company's cable system shall
comply with "Construction, Marking, and Lighting of Antenna Structures",
47 C.F.R. 17.1 et seq., as may be amended from time to time.
F.
Each company shall install and maintain its wire, cable, mixers and
other equipment in accordance with the requirements of the generally
applicable ordinances of the Town as may be amended, and in such a
manner which shall not interfere with any installations of the Town
or any public utility serving the Town.
G.
Privacy.
(1)
The company shall respect the rights of privacy of every subscriber
of the cable television system and, pursuant to applicable federal
law, shall not violate such rights through the use of any device or
signal associated with the cable television system, and as hereafter
provided.
(2)
The company shall comply with all privacy provisions contained in
this chapter and all other applicable federal and state laws, including,
but not limited to, the provisions of § 631 of the Cable
Act.
(3)
The company shall be responsible for carrying out and enforcing the
cable system's privacy policy, and shall at all times maintain
adequate physical, technical and administrative security safeguards
to ensure that personal subscriber information is handled and protected
strictly in accordance with this policy.
(4)
Except as otherwise permitted by applicable law, the company shall
not tap, monitor, arrange for the tapping or monitoring, or permit
any other person to tap or monitor, any cable, line, signal, input
device, or subscriber outlet or receiver for any purpose, without
the prior written authorization of the affected subscriber; provided,
however, that the company may conduct system-wide or individually
addressed "sweeps" solely for the purpose of verifying system integrity,
checking for illegal taps, controlling return-path transmission, or
billing for pay services. The company shall report to the affected
parties any instances of monitoring or tapping of the cable television
system, or any part thereof, of which it has knowledge, whether or
not the company has authorized such activity, other than as permitted
herein. The company shall not record or retain any information transmitted
between a subscriber and any third party, except as required for lawful
business purposes. The franchisee shall destroy all subscriber information
of a personal nature after a reasonable period of time except as authorized
not to do so by the affected subscriber.
(5)
Except as otherwise permitted by applicable law, the company shall
not sell, disclose, or otherwise make available, or permit the use
of, lists of the names or addresses of its subscribers or any list
or other information which identifies by name or address, subscribers
viewing habits, to any person or agency for any purpose whatsoever
without the prior written consent of the subscriber; provided that
the company may make such lists available to persons performing services
for the company in connection with lawful business purposes hereunder
(e.g., a billing service) where the availability of such lists is
necessary to the performance of such services. A subscriber may withdraw
said consent by providing written notice to the company. Every company
shall provide annual notice to each subscriber of the right to withdraw
such authorization. In no event shall such authorization be obtained
as a condition of service or continuation thereof, except as necessary
to adequately provide particular services.
(6)
Upon request, the company shall make available for inspection by
a subscriber at a reasonable time and place all personal subscriber
information that the company maintains regarding said subscriber.
A subscriber may obtain from the company a copy of any or all of the
personal subscriber information regarding him or her maintained by
the company.
(7)
A subscriber may challenge the accuracy, completeness, retention,
use or dissemination of any item of personal subscriber information.
Such challenges and related inquiries about the handling of subscriber
information shall be directed to the company's General Manager.
H.
Performance standards.
(1)
Technical standards. Subject to § 78-10M above, all signals, including PEG signals, carried on a cable system shall be transmitted to subscribers without material degradation and with a quality no less than that prescribed by rules of any federal or state regulatory agencies having jurisdiction. Anything contained in a franchise agreement to the contrary notwithstanding, the technical specifications, operation and performance of the system shall, at minimum, conform at all time to the specifications established by any federal or state regulatory agencies having jurisdiction thereof, and such specifications existing on the effective date hereof, whichever is of the higher quality.
(2)
Performance testing. At such time as the performance monitoring and
testing, conducted pursuant to requirements of any federal or state
regulatory agencies having jurisdiction, provides evidence that the
cable system's transmissions do not meet the prescribed standards,
the performance monitoring and testing shall be repeated for all segments
of the cable system which do not meet such prescribed standards, upon
completion of the necessary repair or adjustment, notwithstanding
the lack of such requirement by the federal or state agencies, and
a report of the second test submitted to Town; provided, that the
company shall not be required to furnish any such reports with respect
to technical problems discovered in the course of the company's
routine maintenance testing, except as may be specifically requested
by Town in each instance. The company shall provide and keep accurately
calibrated test equipment on hand at all times for the testing of
all services and operational standards outlined in the franchise agreement.
A.
Maintenance policy. Each company shall promulgate and adhere to a
preventative maintenance policy directed toward maximizing the reliability
(mean-time-between-malfunctions) and maintainability (mean-time-to-repair)
of its cable system with respect to its delivery of cable service
to subscribers at or above the performance standard set forth herein.
Whenever it is necessary to interrupt service for the purpose of making
scheduled maintenance or repairs, adjustments, installations or other
maintenance activities, the company shall do so at such a time as
will cause the least inconvenience to subscribers. Except in an emergency,
and except for interruptions of five minutes or less which may occur
during the course of normal maintenance, and except during the rebuild
of the cable system, service is to be interrupted for planned or scheduled
maintenance or repairs between the hours of midnight and 7:00 a.m.
where practicable.
B.
Repair. Each company shall maintain a repair department comprising
qualified technicians, service vehicles and equipment to provide prompt
and efficient repair service within the parameters set forth below.
C.
Notice. Except in an emergency, and except for interruptions of five
minutes or less, each company shall give subscribers at least 24 hours'
notice of any planned interruption of service for purposes of maintenance
or repair. In an emergency, a company shall give such notice as is
reasonable in the circumstances. Notice given on the alphanumeric
channels on basic service shall be considered sufficient. During any
rebuild of the cable system, a company shall not be required to provide
twenty-four-hour notice of any interruption of service if such interruption
is the direct result of rebuild work. However, a company shall be
required to provide written notification to subscribers of planned
rebuild work schedules and when subscribers may experience service
interruptions. The company shall use its best efforts to minimize
the length of any service outage due to a rebuild.
D.
Repair procedure. Each company shall have a toll free telephone number
listed in the local area and so operated that requests for repairs
or adjustments can be received at any time, 24 hours per day, seven
days per week. A recording device or answering service may be used
during non-business hours. A company's responses to such requests
shall occur no later than 24 hours after the company's receipt
of such a request; provided, the response time for service complaints
other than complaints of no or unusable service shall be computed
excluding Sundays and holidays. A company shall respond within four
hours to any area outage that occurs between the hours of 7:00 a.m.
and 10:00 p.m. of any day, and by not later than the following 11:00
a.m. to any area outage that occurs between 10:00 p.m. and 7:00 a.m.
If a company responds to a service complaint as herein required and
the subscriber is not satisfied that the problem giving rise to the
original complaint has been resolved, the subscriber shall notify
the company thereof within 48 hours of the repair visit by the company
personnel, and the company shall have an additional period of 24 hours
within which to correct the problem. If such second complaint is made
to Town instead of the company, the company shall have a period of
24 hours after receipt of oral or written notice from Town within
which to make the correction. The requirements for maintenance and
repair shall not apply to subscribers' television or radio receivers
or other subscriber-owned equipment.
E.
Rebate or credit for service loss. Upon request, for every loss of
service in excess of six continuous hours, the company shall grant
a pro rata rebate or credit of the regular monthly charge to the subscriber.
In the event a subscriber reports a loss of service to the company,
and such outage exceeds six continuous hours, the company shall grant
the credit or rebate whether or not the subscriber specifically requests
it. The credit shall be pro-rated by multiplying the applicable monthly
service rate by a fraction whose numerator equals the number of days
of the outage and whose denominator equals the number of days in the
month of the outage. In no case shall the refund be less than 24 hours'
credit. For purposes of this paragraph, loss of basic service shall
be considered a subscriber's receipt of less than two-thirds
of the respective available channels, and loss of pay cable service
shall be considered the loss of signal on any pay channel. The company
shall give the subscriber a credit no later than the next billing
cycle. The company shall include on each subscriber bill for service,
a notice regarding the subscriber's right to a pro rata credit
or rebate for interruption of service upon request in accordance with
this Section. The notice must include a toll-free telephone number
and a telephone number accessible by a teletypewriter device or TTY
for contacting the company to request the pro rata credit or rebate
for service interruption. The notice must be in nontechnical language,
understandable by the general public and printed in a prominent location
on the customer bill in boldface type.
F.
Records. Each company shall maintain records of all oral and written
complaints regarding quality of service, equipment malfunctions, billing
procedure, and similar matters that requires further action on the
part of the company. Such records shall show the exact date and time
of receipt of all such customer complaints, identifying the subscriber,
the nature of the complaint and the exact time action was taken by
the company in response thereto, together with a description of such
action. Each company shall also maintain a record of all whole or
partial system outages, including the date, approximate time and duration,
type and probable cause of each outage, except for outages caused
by routine testing or maintenance. Such records shall be available
at the company's local office for at least two years, for inspection
by Town as it may from time to time request, during regular business
hours and upon reasonable notice, subject to any privacy restrictions
imposed by law. The company shall, within 10 days after receiving
a written request therefore, send a written report to Town with respect
to any complaint. Such report shall provide a full explanation of
the investigation, finding(s) and corrective steps taken.
Service to any subscriber served by a standard aerial drop shall
commence by not later than seven business days after service is requested;
service to any subscriber served by a standard underground drop shall
commence by not later than 45 days after service is requested unless
additional time is required by severe weather or other circumstances
outside of the company's control. The company shall exert every
reasonable effort to commence service to a subscriber served by a
nonstandard drop as expeditiously as possible. A standard drop, for
which the subscriber shall be charged the company's standard
installation fee, is a drop running not more than 150 feet from feeder
cable to the subscriber's structure; provided, that any installation
which requires the company to cross a street underground shall be
considered a nonstandard installation. An aerial drop in excess of
150 feet in length shall be considered a nonstandard installation.
If the company schedules an appointment with a subscriber for an installation,
repair or other service call, and the company fails to arrive at the
subscriber's premises within one hour of the scheduled time or
scheduled window of time (which window shall not exceed four hours)
for reasons not caused by the subscriber unless rescheduled in advance
by the company, the company shall, in the case of an appointment for
a standard installation, make no charge to the subscriber for the
standard installation, and in the case of a repair or other service
call, shall apply a minimum $20 credit to the subscriber's account
to reduce the cost of any make-up or late repair or service call.
A.
Regulation. Town shall have the right to regulate charges to subscribers
for cable service to the extent allowed by law.
B.
Rate or service discriminations: special classifications. No company
shall subject any person to any prejudice or disadvantage, preference
or advantage in connection with rates, charges, service facilities,
rules or regulations. Nothing herein shall prohibit the establishment
of a graduated scale of rates for classified schedules to which any
subscribers within such classification shall be entitled.
C.
Connection charges. Subscribers shall be assessed no special connection
charges other than standard installation charges for cable drops from
any company's distribution plant up to 150 feet. Subscribers
requiring drops over 150 feet shall be charged only for the incremental
cost of extending the drop beyond 150 feet.
D.
Rates and programming.
(1)
Each company shall give the Town and each subscriber 30 days'
written notice of any change in subscriber rates or charges. At the
Town's request, exercised by the Town giving the company at least
10 days' notice thereof, the company shall attend, and respond
to questions, at any public meeting held by the Town concerning the
rate increase. Notice to subscribers of rate changes shall be by mail.
Each company shall also provide each subscriber at least annually
with a detailed explanation of downgrade and upgrade policies and
the manner in which subscribers may terminate cable service. Subscribers
shall have at least 30 days from receipt of notification of any rate
increase to either downgrade service or terminate altogether without
any charge.
(2)
Each company shall give the Town and each subscriber 30 days'
written notice of any change, including additions or deletions, or
change in channel position, in the programming carried on the cable
system, as well as any retiering of such programming, and any other
changes in the programming service offered by each company. At the
request of the Town, with at least 10 days' notice, each company
shall meet with the Town at a public meeting to discuss programming
issues and options and to hear and consider the input of the Town
and the public.
(3)
Each company shall use its best efforts to provide a wide diversity
of programming options to its subscribers. Each company shall provide
the following broad categories of programming:
(4)
Rate schedules shall be provided to subscribers annually.
E.
Billing practices. Each company shall set forth, in writing its billing
and collection practices and policies, and procedures for ordering
changes in or termination of services and refund policies, and shall
furnish a copy thereof to each new subscriber and to Town, and thereafter
to Town and all subscribers at such time as there is a change in such
policies.
F.
Pro-rated service. In the event a subscriber's service is terminated,
monthly charges for service shall be pro-rated on a daily basis and,
where advance payment has been made by a subscriber, the appropriate
refund shall be made by the company to the subscriber within 30 days
of such termination.
G.
Disconnection for nonpayment. The company shall have the right to
disconnect a subscriber for failure to pay an overdue account; provided,
that:
(1)
The company's billing practices and policy statement set forth
the conditions under which an account will be considered overdue;
(2)
At least 12 days prior to the proposed disconnection, the company
mails to the subscriber written notice of intent to disconnect for
delinquency in payment;
(3)
The subscriber's account is at least 60 days delinquent at the
time said notice is mailed; and
(4)
The disconnection occurs at least 12 days, and not more than 60 days,
after the mailing of the above written notice.
H.
Notice of rates and programming. All rates and charges associated
with the provision of cable service and the lease of channel space
shall be published. A written schedule of all such rates currently
in effect, including special and promotional rates, shall be available
and obtainable in person or by mail upon request during business hours
at each company's business office.
(1)
At least once each calendar year, each company shall provide to each
subscriber and the Town a complete schedule of all services, rates
and charges for cable service provided by the company and of the programming
offered and channel alignment. Such information shall also be provided
to all new or prospective subscribers prior to installation or commencement
of service.
(2)
Such information shall be written in plain English and shall include,
but shall not be limited to, the following: all services, tiers and
rates, deposits, if applicable, installation costs, additional television
set installation charges, service upgrade or downgrade charges, stolen
or lost converter charges, charges for lockout devices and for connecting
video cassette recorders to the cable system.
I.
General customer service. Each company shall comply with any and
all customer service standards provided under Maine law, Federal law,
FCC regulations, including those regulations found at 47 C.F.R. § 76.309,
and as promulgated by the cable industry, (such as NCTA standards),
as well as with the provisions of the applicable franchise agreement.
To the extent of any difference or conflict in the requirements of
this chapter, the franchise agreement, state and federal law, FCC
regulations and/or cable industry standards, the strictest of such
standards shall govern.
A.
Complaint policy. Any company issued a franchise under this chapter
shall promulgate within 120 days of issuance a written policy statement
setting forth the procedure for reporting and resolving subscriber
complaints and shall furnish a copy thereof to each new subscriber
and to the Town, and thereafter, annually, to the Town and all subscribers.
Such notice shall comply in all respects with the Cable Act, FCC Regulations,
Maine law and this chapter.
B.
Company response. Each company shall receive subscriber complaints
at its business office serving Town and shall handle all such complaints
promptly but in no event later than as set forth below.
C.
Billing complaints. In the case of a billing complaint, the company
shall respond to the complainant by no later than five business days
following receipt of the complaint.
D.
Service complaints. In the case of a service complaint not requesting
repair or adjustment, the company shall respond to complainant within
five business days following receipt of the complaint.
The company shall not, as to rates, charges, service, service
facilities, rules, regulations, or in any other respect, make or grant
any undue preference or advantage to any person, nor subject any person
to any prejudice or disadvantage.
A.
General report filing requirements. The Town may require each company
to maintain and file such reports, contracts and statements which
are reasonably necessary to monitor compliance with this chapter and
the franchise agreement, including but not limited to ownership, accounting,
auditing and operating statement, engineering reports, and other data,
which the Town shall deem necessary or appropriate to administer the
provisions of this chapter. Records which shall be available for inspection
and review by the Town shall include, but not be limited to:
(1)
All correspondence among the company and any of his agents, and all
regulators or other government agencies pertaining to the operation
of the cable system in the Town necessary to monitor compliance.
(2)
All reports, applications, and other documents sent to, or required
by, any government agency pertaining to the operation of the cable
system in the Town necessary to monitor compliance.
(3)
All oral and written complaints received by the company or its agents
from the subscribers in the Town for the preceding two years of the
term of the franchise, and the disposition thereof.
(4)
All financial records reasonably necessary to determine compliance
with and carry out the provisions of this chapter and any franchise
agreement necessary to monitor compliance.
B.
Annual report. No later than April 1 of each year during the term
of a franchise agreement, each company shall submit an annual report
to the Town for the prior calendar year, which report shall include
at a minimum:
(1)
Total miles of cable plant installed to include a specific description
of any line extensions in the City of Saco in the prior calendar year.
(2)
Total number of service calls indicating number of dispatches and
number repaired.
(3)
Listing of all charges and fees for cable or cable related services.
(4)
A listing of any system outages in the City of Saco over the prior
year in excess of one hour, including the affected locations, the
date, time, duration, cause of the outage, and steps taken to address
the outage.
(5)
Equipment or equivalent funding provided to the PEG channel(s) if
any.
(6)
A summary of customer complaint records for the prior year, including
an identification of any significant customer service issues raised
in the City of Saco in the prior year and any resolution or changes
in service resulting.
C.
Supplemental reporting.
(1)
Upon written request of the Town, the company shall provide not more
than annually, a report listing the following:
(a)
A summary of the most recent FCC proof of performance tests
and measurement records interpreted in laymen's language describing
the cable system's compliance or lack of compliance with the
FCC Technical Standards set forth in 76 C.F.R. § 76.601
et seq. as the same may be modified in the future, identifying any
instances of noncompliance and describing all measures taken or under
way to achieve compliance;
(b)
A list of any material violations by the company of the technical
rules of the FCC, including but not limited to violations of rules
and regulations regarding signal quality and safety during the past
12 months, and describing all measures taken or underway to achieve
compliance; and
(c)
A copy of the company's most recent S.E.C. Forms 10K and
10Q.
(2)
After delivery of the annual report, each company shall, at the request
of the Town, attend a meeting with the Town to review and discuss
any issues or questions raised in the Town's review of the annual
report.
A.
Nothing herein shall be deemed or construed to impair or affect,
in any way, to any extent, the right of the Town to acquire the property
of the company, either by purchase or through the exercise of the
right of eminent domain and nothing herein contained shall be construed
to contract away or to modify or abridge, whether for a term or in
perpetuity, the Town's right of eminent domain.
B.
Neither the awarding of a franchise nor any provision hereof shall
constitute a waiver or bar to the exercise of any governmental right
or power of the Town.
C.
The City Council is hereby authorized and empowered to adjust, settle,
or compromise any controversy or charge arising from the operations
of the company under this chapter, either on behalf of the Town, the
company, or any subscriber, in the best interest of the public.
D.
The Town shall have the right to inspect all construction of installation
work for a cable system and to make such inspections as it shall find
necessary to insure compliance with the terms of this chapter, and
franchise awarded pursuant hereto, and any other pertinent provisions
of the law.
E.
Upon revocation or denial of a renewal under the formal process of
the Cable Act of any cable franchise, the Town shall have the right
to require the company to remove at its own expense all portions of
the cable system from all streets and public ways within the Town.
F.
Nothing in this chapter or the franchise shall encumber or prohibit
the Town from the collection of property taxes, of whatsoever kind,
allowed by state law.
A.
Notice and hearing. The City Council of the Town may revoke any franchise
awarded pursuant to the provisions of this chapter and federal law
upon 30 days' written notice to the company and after hearing,
in the event that the company:
(1)
Violates any material provision of its franchise agreement, where
such violation remains uncured for a period of 30 days;
(2)
Ceases to provide service over the cable system or fails to restore
service after 96 consecutive hours of interrupted service except in
cases of force majeure or when approval of such interruption is obtained
from the Town;
(3)
Fails to provide or maintain in full force and effect the insurance
coverages and the performance bond as required by this chapter and
under the terms of the franchise agreement, where such violation remains
uncured for a period of 30 days;
(4)
Violates any rule, order or determination of the Town made pursuant
to the franchise agreement or this chapter where such violation remains
uncured for a period of 30 days; or
(5)
Violates any other provision of law.
B.
Procedures. The Town shall follow the following procedures in revoking
a franchise:
(1)
The Town shall provide the company with notice of intention to revoke
the franchise. The written notice shall be sent by certified or overnight
mail and shall describe in reasonable detail the specific violations
alleged to have occurred.
(2)
The company shall have 30 days from receipt of the notice either
to correct the alleged violation or dispute the Town's allegations
in writing. In the event that, by nature of the alleged violation,
such violation cannot be cured within such thirty-day period, the
parties shall meet in good faith and agree to a reasonable cure schedule.
(3)
If the company disputes the Town's allegations, the City Council
shall conduct a public hearing within 30 days of receipt of notice
that the company disputes the allegations. The hearing shall follow
the procedures set forth for public hearings before the City Council
and the company shall have the right to present evidence, and question
witnesses, if any.
(4)
Following the public hearing, the municipal officers shall make a
determination as to whether to revoke the franchise, and shall issue
a written decision containing its findings.
(5)
The City Council of the Town shall, either directly or through their
designees conduct public hearings and issue such appropriate orders
as it may deem necessary to enforce the provisions of this chapter
and any franchise agreements, including the revocation of franchise
agreements and the assessment of penalties for violations, as well
as to correct any deficiencies in the operation of the system.
(6)
All such orders of the City Council shall not be in conflict with
those that have been or may be adopted by the Federal Communications
Commission for the operation of such cable systems, except that unless
preempted, such ordinances, regulations, rules and orders may be more
detailed, more strict or more restrictive than applicable FCC regulations.
(7)
As part of its enforcement authority, the City Council have the authority
to bring legal action for damages, penalties and for injunctive relief.
In the event that the Town brings legal action to enforce the provisions
of this chapter or the franchise agreement, and the Town prevails
in the action, the Town shall be entitled to recover its costs, including
reasonable attorneys' fees, incurred in the prosecution of any
such action.
C.
Appeal. The company shall have the right to appeal any decision of
the Town under this section within 30 days of the date of the decision
or ruling to the Maine Superior Court pursuant to M.R. Civ. P. 80B.
