This chapter may be cited as the “Cable Television Franchise Chapter” and may be cited as “this chapter” herein.
(Ordinance 2000-06 adopted 5/9/00)
(A)
The board of county commissioners finds it necessary to grant companies providing cable service in the county a franchise to construct, purchase, acquire, locate, maintain, operate and extend into, within and through the county plants, works, systems and facilities for the cable service being provided to the residents of the county, which may include construction on, over, under, along and across county roads, viaducts, bridges, lanes, other public ways and public places, and to sell, furnish and distribute cable services to residents of the county; and to fix the terms and conditions thereof.
(B)
The board of county commissioners hereby finds that the cable-related needs and interests of the citizens of the county are expressed in the provisions of this chapter.
(Ordinance 2000-06 adopted 5/9/00)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
Any service tier which includes the retransmission of local television broadcast signals.
The Board of County Commissioners of Santa Fe County, New Mexico.
The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of the video programming or other programming service.
Cable service includes the provision of internet service, by cable modem or otherwise, through a cable system, so long as the services are deemed by law to be cable services and so long the company’s cable facilities are not required to be interconnected to telephone lines to enable the provision of the service.
A facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but the 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 47 USC, section 547, except that the facility shall be considered a cable system to the extent the facility is used in the transmission of video programming directly to subscribers unless the extent of the use is solely to provide interactive on-demand services; or any facilities of any electric utility used solely for operating its electric utility system.
Cable system includes those portions of an open video system falling under the above definition to the extent that they are used for the provision of cable service and to the extent permitted by applicable law.
The certificate issued by the county upon grant of a franchise and the signed acceptance thereof by the company.
The franchisee who is granted a franchise to provide cable service in the county.
Includes, but is not limited to, plants, works, systems, improvements and equipment of the company such as pipes, conduits, transformers, wires, overhead links, cables, poles and underground links.
The initial authorization or renewal thereof issued by the county, whether the authorization is designated as a franchise, permit, license, lease resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.
The revenues derived from the operation of the cable system to provide cable services within the county; provided, however, that the phrase shall not include:
Revenues received from any advertising carried on the cable system;
Any taxes on cable service which are imposed directly or indirectly on any subscriber thereof by any governmental unit or agency, and which are collected by the company on behalf of such governmental unit or agency; and
Uncollected balances, credits or rebates.
Gross revenues includes money collected from subscribers that is ultimately allocated by the company to pay any franchise fees.
The provision of cable service by a local exchange carrier pursuant to 47 USC, section 573, as amended.
An individual, partnership, association, joint stock company, trust, corporation or government entity.
Any public street, highway or other public right-of-way, including, but not limited to public utility easements. Any easement now or hereafter held by the county within the service area for the purpose of public travel or for utility or public service.
The area within the county that the board of county commissioners permits a company to offer cable service and any extensions thereto.
A person or user of the cable system who lawfully receives cable services or other service therefrom with a company’s express permission.
(Ordinance 2000-06 adopted 5/9/00)
(A)
Any company desiring to provide cable service within the county must apply for and receive a certificate and acceptance of franchise, which shall be issued by the board of county commissioners after a public hearing, provided that all requirements of this chapter are met, and provided that the company agrees to abide by reasonable terms and conditions as imposed by the board of county commissioners.
(B)
No company shall connect or otherwise provide cable service to any person in the county without first receiving and endorsing a certificate and acceptance of franchise from the county.
(D)
All franchises granted after the effective date of this chapter shall comply with all provisions of this chapter.
(Ordinance 2000-06 adopted 5/9/00)
The county expressly reserves, and the company expressly recognizes, the county’s right and duty to adopt, from time to time, in addition to the provisions herein contained, regulations and ordinances of general applicability as the county may deem necessary in the exercise of its police power for the protection of the health, safety and welfare of its citizens and their properties, specifically including any regulations or ordinances regulating proof of financial, technical and legal qualifications to provide service and rates for equipment, service and installation pursuant to applicable federal laws and regulations.
(Ordinance 2000-06 adopted 5/9/00)
Neither the county, nor the company, shall be excused from complying with any of the terms and conditions of any franchise by any failure of the other, or any of its officers, employees or agents, to insist upon or to seek compliance with any terms and conditions.
(Ordinance 2000-06 adopted 5/9/00)
Any provision of this chapter that is in conflict with applicable federal or state law shall be void.
(Ordinance 2000-06 adopted 5/9/00)
(A)
Construction, installation and maintenance of the cable system shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state and local regulation. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the county.
(B)
(1)
The company shall, upon written request by the county, provide one cable service outlet, without charge, and furnish basic cable service, without charge, to any public building controlled by the county, provided that the buildings are passed by the plant of the company.
(2)
The company shall also furnish, upon request and without charge, the outlet and service to public schools within the unincorporated limits of the county, provided that the schools are passed by the plant of the company.
(C)
The company shall comply with the customer service standards promulgated by the Federal Communications Commission, 47 CFR 76.309, as amended, unless otherwise agreed to by the county and the company and imposed on a competitively neutral basis, and noted in the certificate and acceptance of franchise.
(D)
The company shall not deny access to cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which the group resides.
(Ordinance 2000-06 adopted 5/9/00)
(A)
Location and maintenance.
(1)
The company shall submit written notice to the land use office upon commencement of construction of structures and cable line extensions.
(2)
Upon completion of a project, the company shall submit certification that the project has met all county requirements.
(3)
Application for a development permit and final inspection shall be sufficient to comply with the above requirements.
(4)
All company facilities constructed or maintained by the company within the county shall be located so as to cause minimum interference with county and public use of public places and shall be maintained in good repair and condition.
(5)
Facilities located on, upon, over and under public places shall be constructed, installed, maintained and cleared of vegetation in accordance with the reasonable requests as the county may impose from time to time on the owners of the facilities and in accordance with reasonable aesthetic and safety concerns.
(B)
Undergrounding.
(1)
No new poles for aerial lines shall be erected. All cable lines that are not to be located on existing poles shall be placed underground.
(2)
The board of county commissioners may grant, for good cause shown, a special exception to this requirement at a public meeting, provided that the applicant comply with the notice required by the land development code for zoning variances.
(C)
County use of rights-of-way.
The company will offer to grant use of rights-of-way which it now, or in the future, owns or has an interest in, within the county, to the county for the purposes of parks, drainage facilities, bikeways, traffic conduits, mass transit corridors, sanitary sewer lines, pedestrian area parking or open spaces, provided that the county has first obtained the right from the dominant estate owner to use the right-of-way, and further provided that the company shall not be required to make such an offer in any circumstances where the offer would interfere with the company’s use of the right-of-way and it being recognized that the company assumes no liability for any claims of loss or injury occurring in any multiple use area.
(D)
Zoning approval and development permits.
The company will obtain proper and necessary zoning approval and development permits for any buildings, lines, towers, other facilities or any development that require the approval or permits.
(E)
Excavation and specific placement.
(1)
The company shall have the right to excavate in, occupy and use any public places as described in its certificate and acceptance of franchise after obtaining appropriate excavation and/or road cut permits from the county and complying with applicable county ordinances.
(2)
The county may require specific placement of the company’s facilities in a way as to accommodate reasonable safety and terrain management concerns.
(F)
Restoration of property.
(1)
The company shall reconstruct, replace or restore any public place, in a timely manner, without cost to the county, to a condition acceptable to the county consistent with reasonable standards of safety and appearance, which includes restoring as practicably as possible the affected property to the condition it was prior to excavation or development.
(2)
All use of the rights-of-way by the company shall interfere as little as reasonably practicable with the use of the rights-of-way by others.
(Ordinance 2000-06 adopted 5/9/00)
(A)
The company shall obtain any necessary excavation or road cut permits from the county before excavating any area within the county.
(B)
(1)
In the event of an emergency, no excavation or road cut permit is required to be obtained before the excavation of a county road or public place or way, but must be applied for within three days of the emergency excavation. The company shall notify the county manager or his or her designee of the excavation within 48 hours of the excavation.
(2)
Any subsequently enacted ordinance governing emergency road cuts and/or excavations shall supersede this section to the extent that it is in conflict with these provisions.
(Ordinance 2000-06 adopted 5/9/00)
(A)
(1)
The county expressly reserves the right to change the grade, install, relocate or widen the public streets, sidewalks, bikeways, alleys, public thoroughfares, highways and public places and ways within the county, and the county reserves the right to require the company to relocate, at the sole expense of the company, its anchors, manholes, conduits, trenches and other facilities and appurtenances in order to accommodate the paving, installation, relocation, widening or changing of the grade of any such public street, sidewalk, bikeway or public way if the relocation is deemed necessary by the county for traffic safety purposes or for purposes of health, safety or welfare of the residents of the county.
(2)
Whenever a change is deemed necessary by the county, the company shall make the alterations within 30 days or as soon as practicable when requested, in writing, by the county, according to the reasonable construction specifications required by the county, and without claim for reimbursement or damages against the county.
(3)
The county reserves the right to lay and permit to be laid any facilities, and to do and permit to be done any underground and overhead installations or improvements that may be deemed necessary or proper in, across, along, over or under any public place or way, and to change any curb or sidewalk or the grade of any street.
(4)
If the county should encounter any facilities of the company in a public place or public way, the county shall provide notice to the company of the work to be done by the county and shall allow the company to view the work being done by the county.
(5)
The primary responsibility for removing or relocating facilities shall be with the company that owns the facilities; however, if the company fails to timely or responsibly respond to the county’s request to remove or relocate the facilities, then the county may, at its sole option, remove or relocate the facilities and charge the company for the removal cost and the county shall not be liable to the company or any of its customers for any damage done by the county; provided however, nothing herein shall relieve any other person or corporation from liability for damages to facilities of the company.
(B)
(1)
The company shall, upon the request of any person holding a building moving permit issued by the county, temporarily raise or lower its wires to allow the moving of the building, provided that any expense therefor shall be paid in advance by the person to the company.
(2)
The company shall be given not less than ten working days’ notice of the intended building move by the person.
(3)
The company shall, upon the reasonable and necessary request of any other utility occupying county right-of-way, move its facilities to accommodate co-location of the facilities of other utility; provided that, any expense therefor shall be paid in advance by the utility to the company.
(4)
The company shall be given not less than ten working days’ notice of the requested move by the utility.
(Ordinance 2000-06 adopted 5/9/00)
(A)
The company, as a condition of the grant of any franchise, and in consideration thereof, shall protect, indemnify and hold the county harmless against all claims for damages to persons or property by reason of the construction, maintenance and operation of its facilities, and conduct of its business, or any way arising out of the granting of its franchise directly or indirectly, when injury is caused, wholly or in part, by any act, omission, negligence or misconduct of the company or any of its contractors, officers, agents or employees, or by any person for whose act, omission, negligence or misconduct, the company is by law responsible.
(B)
This provision is not intended to create liability for the benefit of third parties, but is solely for the benefit of the county.
(C)
In the event any claim is made against the county that falls under this indemnity and a court of competent jurisdiction should adjudge, by final decree, that the company is liable. Therefore, the company shall indemnify and hold the county harmless of and from any judgment or liability, including any court costs, reasonable expenses, and reasonable attorney fees incurred by the county in defense thereof.
(D)
Upon commencement of any suit or proceeding at law or in equity against the county relating to or covering any matter covered by this indemnity, wherein the company has agreed by accepting any franchise to indemnify and hold the county harmless or to pay the final judgment and costs, as the case may be, the county shall give the company immediate notice of the suit or proceeding; whereupon, the company shall provide a defense to any suit or suits, including any appellate proceedings brought in connection therewith, and pay as aforesaid, any final judgment or judgments that may be rendered against the county by reason of the damage suit.
(E)
Upon failure of the company to comply with the “defense of suit” provisions of this chapter, after reasonable notice to it by the county, but not less than 15 days, the county shall have the right to defend the same and be reimbursed by the company for any judgment that may be rendered against the county, together with all cases, as well as expenses incurred by reason of undertaking the defense of the suits, whether the suits are successfully defended, settled, compromised or fully adjudicated against the county.
(F)
The company shall secure and maintain, throughout the term of this franchise, an insurance policy naming the county as an additional insured with limits sufficient to indemnify the provisions of this section, but in no event less than the limits set by the New Mexico Tort Claims Act, NMSA, sections 41-4-1 through 41-4-29, and the company shall provide the county with proof of the insurance.
(Ordinance 2000-06 adopted 5/9/00)
(A)
The company shall have the right to seek renewal of a franchise granted under this chapter or any prior ordinance. Any proceedings that relate to the renewal of the company’s franchise shall be governed by and comply with the provisions of 47 USC, section 546, as amended. In the case of the renewal of any franchise in effect as of the effective date of this chapter, the provisions of this chapter shall be considered to be the board of county commissioners’ determination of the cable-related needs and interests of the county and shall be adhered to in the negotiation of any franchise renewal to the extent that the cost to the company of meeting the needs and interests is reasonable.
(B)
The company shall have the right to seek modification of a franchise granted under this chapter. Any proceedings undertaken by the company that relate to the modification of the company’s franchise shall be governed by and comply with the provisions of 47 USC, section 545, as amended.
(Ordinance 2000-06 adopted 5/9/00)
(A)
The county may require the company, when not technically and economically infeasible, to designate one channel each for public, educational and governmental use, for a total of up to three channels so reserved or designated.
(B)
The county may require the company to provide services, facilities or equipment for the use of the above channels. The costs of providing and delivering the programming and the costs associated with activation and maintenance of the channels shall be negotiated at the time of grant of franchise among the county, the company and any potential users or providers of programming and shall be credited against the franchise fee charged in section 112.33.
(C)
The company shall be permitted to use the above-designated channel capacity as it sees fit if the channel capacity is not being used for the purposes designated. The company shall cease the permitted use upon 60 days’ notification to the company that the channel capacity is needed for the above purposes.
(D)
Public notice by publication shall be given at least one time in a newspaper of general circulation in the county of any channel capacity made available under this section.
(Ordinance 2000-06 adopted 5/9/00)
(A)
Notwithstanding any other provisions of this chapter, the county shall have the option to terminate any franchise at any time for failure of the company to substantially comply with any material term, condition or provision of this chapter or any other applicable ordinances of the county, in accordance with the procedures set out herein.
(B)
If the county believes that the company has not complied with the material terms of this chapter or any other applicable ordinances, it shall notify the company in writing of the exact nature of the alleged noncompliance and the county’s intent to enforce the provisions of this chapter.
(C)
The county may elect to hold in abeyance its decision to treat the company as violating this chapter and the requirements and terms of this chapter shall remain in full force and effect, pending the company’s curative actions in conformity with this section.
(D)
Any remedy pursuant to this subsection shall be imposed only by a written decision of the board of county commissioners after conducting a public hearing to afford the company an opportunity to be heard and to respond to any notice of violation or failure to comply. All due process requirements shall be met by providing the company at least 15 days’ prior written notice of any public hearing concerning the termination of the franchise and, in addition, ten days’ notice by publication shall be given of the date, time and place of any public hearing to interested members of the public.
(E)
(1)
The board of county commissioners, after full public hearing, may, in its discretion, either terminate the franchise, or, upon finding a violation or failure to comply, impose a lesser penalty than to terminate the franchise, including, but not limited to a civil monetary penalty of $300.00 per day per violation, or excuse the violation or failure to comply upon a showing by the company of mitigating circumstances or upon a showing of good cause for the violation.
(2)
Each day the violation occurs or continues to exist without remedy constitutes a separate violation.
(F)
All franchises shall continue until the expiration date set forth in those franchises unless terminated sooner pursuant to the terms of this chapter. Any franchise granted pursuant to this chapter shall expire on the date set forth on the certificate and acceptance of franchise. Any and all expansions of the service area shall expire and/or terminate when the original franchise terminates, unless terminated sooner pursuant to this chapter.
(G)
If any portion of the facilities are retired or become obsolete, abandoned or otherwise cease to be used, the company shall remove the facilities at company expense within six months. If the facilities are not removed, the county shall, at its option, either cause all right and title in the facilities to be forfeited to the county or shall require that the company remove the facilities.
(H)
The county may enforce any provision of this chapter by injunction or other action in the district court of the county. The county shall not be required to post a bond or other security to obtain an injunction.
(I)
The company shall not be held in default or noncompliance with any provision of this chapter and the company shall not suffer any enforcement, penalty or other adverse consequence relating to this chapter or the franchise granted hereunder where the noncompliance or default is caused by strikes or other labor actions, wars or other hostilities, civil disobedience, tornadoes, hurricanes, similar natural catastrophes or other “acts of God,” power outages or similar events beyond the control of the company.
(Ordinance 2000-06 adopted 5/9/00)
(A)
The company is authorized to extend its service area as it deems necessary and desirable, provided that it gives notice to the county 30 days prior to the commencement of any such extension.
(B)
The county shall respond to the company within 15 days of receipt of the above notice.
(C)
(1)
The county may either grant administrative approval of the action or it may conduct a public hearing on the company’s extension.
(2)
If the county elects to hold a public hearing, the hearing shall be held within 45 days of receipt of the above notice.
(3)
At the hearing, the board of county commissioners may impose conditions on or deny the extension if it would adversely affect the health, safety and welfare of the residents of the county.
(Ordinance 2000-06 adopted 5/9/00)
(B)
(1)
Notice to the company will be mailed to the address of the company as set forth on the certificate and acceptance of franchise or at another address as requested by the company, in writing, to the county.
(2)
Notice will be effective upon delivery at the above addresses until the county or company notifies the other, in writing, of a change in the address.
(Ordinance 2000-06 adopted 5/9/00)
(A)
(1)
No franchise or any part thereof, including the right to serve any given area, shall be assigned by the company, except as set forth herein. Any person desiring to acquire, purchase, lease or otherwise use any portion of a company’s franchise or facilities must apply to the county for a separate certificate and acceptance of franchise.
(2)
The county will not unreasonably withhold approval of a transfer of interest by the company to any party, provided that the party meets all requirements to provide service under the franchise as then in effect.
(3)
Notwithstanding the foregoing, no approval by the county and no certificate and acceptance of franchise, shall be required for:
(4)
Nothing in this chapter shall prohibit companies from leasing channel space, as required by federal law.
(B)
The application by the assignee or transferee shall not be deemed complete until all information, documents, registrations and requirements of state law have been met and the time for approval or denial of the application shall not begin to run until the application is complete.
(Ordinance 2000-06 adopted 5/9/00)
The right to provide cable service and to use and occupy streets, alleys, viaducts, bridges, roads, lanes, public ways and other public places for the purposes of any franchise is not and shall not be deemed to be an exclusive franchise and the county reserves the right to make or grant a similar franchise and use in public ways and places to any other entity; provided that, no subsequent franchise will be permitted to unreasonably interfere with the physical operation of any existing franchise.
(Ordinance 2000-06 adopted 5/9/00)
(A)
This chapter shall apply to all companies doing business in the county and all companies must apply for and receive a certificate and acceptance of franchise in order to provide cable service in the county.
(B)
Any franchise, and the rights, privileges and authority granted hereunder, shall, upon receipt of all necessary approvals, take effect on the date of issuance of a certificate and acceptance of franchise and shall continue in effect for a period of ten years pursuant to this chapter.
(C)
Any franchise in effect as of the effective date of this chapter shall be subject to all terms of this chapter that are not in conflict with the provisions of that certificate and acceptance of franchise. This chapter shall not alter the written provisions of any negotiated franchise currently in effect.
(Ordinance 2000-06 adopted 5/9/00)
(A)
(1)
The company agrees to pay the county a franchise fee for the use of the streets and other public places within the boundaries of the county and outside the boundaries of any incorporated municipality and for the privilege of doing business in the county.
(2)
The company shall pay to the county a franchise fee in an amount not to exceed 5% of its annual gross revenue.
(3)
The franchise fee provided for herein shall constitute the exclusive monetary rental payment by the company to the county for the company’s special use and occupancy of the streets, alleys and other public places within the boundaries of the county.
(4)
Payment shall be made quarterly, within 60 days following the close of each calendar quarter, no higher nor lower franchise fees may be charged to any company operating under this chapter.
(B)
Any operator of an open video system shall pay a fee of 5% of its annual gross revenue derived from operation of the open video system in lieu of the above franchise fees.
(C)
(1)
All companies shall, before July 31 of each year, submit a written report to the county for the company’s fiscal year, in a form reasonably acceptable to the county, which shall include:
(2)
Upon request of the board of county commissioners, the company shall present the report and make itself available to answer questions in a regular or special meeting of the board of county commissioners.
(D)
In the event of a question by the county as to any amount of franchise fee due, the county shall have access to all records necessary to the calculation of the franchise fee. The records may be reviewed by the county manager or his or her designee, upon reasonable notice during normal business hours on a nondisruptive basis. The company shall not be required to disclose information which it reasonably deems to be proprietary or confidential, however in the case of privileged information withheld under this section, the county may employ a reasonable estimate of any figures necessary to the calculation of the fee.
(E)
Accounts over 45 days past due shall be assessed interest at a rate of up to 8.75% per year on the outstanding balance.
(Ordinance 2000-06 adopted 5/9/00)