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.
(1)
Customer service provisions.
The company shall have
90 days from receipt of the notice described above to either:
(a)
Respond to the county contesting the assertion of noncompliance;
or
(b)
Cure the default and if the default cannot be cured within the 90-day
period, initiate reasonable steps to remedy the default and notify
the county of the steps being taken and the projected date that they
will be completed.
(2)
Other ordinance provisions.
The company shall have 30
days from receipt of the notice described above to either:
(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)
