The city may grant one or more franchises in accordance with
this article. No person may construct or operate a cable system in
the city without a current and valid franchise granted by the city.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.15)
(a)
A franchise
authorizes use of the public rights-of-way for installing and maintaining
cables, wires, lines, and other facilities to operate a cable system
within the city, but does not expressly or implicitly authorize the
franchisee to provide service to, install cables, wires, lines, or
any other equipment or facilities upon private property without owner
consent (except for use of compatible easements pursuant to 47 USC
§ 541(X)(2)), or to use publicly or privately owned utility poles
or conduits without a separate agreement with the owners.
(b)
A franchise
is nonexclusive and will not expressly or implicitly preclude the
issuance of other franchises to operate cable systems within the city
or affect the city’s right to authorize use of public rights-of-way
to other persons as it determines appropriate.
(c)
A franchise
conveys no property right to the franchisee or right to renewal other
than as may be required by state or federal law.
(d)
A franchise
agreement constitutes a contract between the franchisee and the city
once it is accepted by the franchisee. A franchisee contractually
commits itself to comply with the terms, conditions and provisions
of the franchise agreement and with all applicable laws, ordinances,
codes, rules, regulations, and orders.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.16)
(a)
A franchisee
is subject to and must comply with all applicable local, city, state
and federal laws, ordinances, codes, rules, regulations, and orders.
A franchisee is also subject to the city’s police power in accordance
with state law. Where the city has granted multiple franchises so
as to establish the provision of cable service on a competitive basis,
it shall be the obligation of each franchisee to operate its system
so as to compete fairly.
(b)
A franchisee
or other person may not be excused from complying with any of the
terms and conditions at this article or a franchise agreement by any
failure of the city, upon one or more occasions, to require compliance
or performance.
(c)
The
city may, on its own motion or at the request of an applicant or franchisee
for good cause shown, waive any requirement of this article.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.17)
(a)
The
provisions of this article will apply to a franchise agreement as
if fully set forth in the franchise agreement. The express terms of
this article will prevail over conflicting or inconsistent provisions
in a franchise agreement unless such agreement pre-dated the effective
date of this article.
(b)
The
provisions of a franchise agreement will be liberally construed in
order to effectuate its purposes and objectives consistent with this
article and the public interest.
(c)
A franchise
agreement will be governed by and construed in accordance with state
laws.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.18)
(a)
An application
must be filed with the city for grant of a new franchise, renewal
of a franchise under either the formal or informal procedures in accordance
with Section 626 of the Cable Act, 47 USC §546, modification
of a franchise agreement, or a transfer of a franchise. An applicant
has the burden to demonstrate compliance with all requirements of
this article and of federal law.
(b)
To be
acceptable for filing, an application must be submitted in the number
of copies required by the city, be accompanied by the application
filing fee where required, conform to any applicable request for proposals,
and contain all required information. All applications must include
the names and addresses of persons authorized to act on behalf of
the applicant with respect to the application.
(c)
All
applications accepted for filing must be made available by the city
for public inspection. The city shall advertise the receipt of all
accepted applications in accordance with standard procedure.
(d)
An application
for the grant of a new franchise may be filed only in response to
a request for proposals issued by the city and publicly advertised.
A person that desires to file an application may file a request with
the city to issue a request for proposals. Such a request should indicate
the nature of that person’s interest and why it is believed
that the issuance of a new franchise would serve the public interest.
An application which does not conform to the requirements of a request
for proposals may be considered nonresponsive and returned.
(e)
An application
for the grant of a new franchise must contain at minimum the following
information:
(1)
Name
and address of the applicant and the identification of the ownership
and control of the applicant, including: the names and addresses of
the ten largest holders of an ownership interest in the applicant,
and all known persons with 5% or more ownership interest; the persons
who control the applicant; all officers and directors of the applicant;
and any other business affiliation and cable system ownership interest
of each named person;
(2)
An
indication of whether the applicant, or any person controlling the
applicant, or any officer or major stockholder of the applicant, has
been adjudged bankrupt, and had a cable franchise revoked, or not
renewed, or been found guilty by any court or administrative agency
of a violation of a security or antitrust law, or a felony, or any
crime involving moral turpitude; and if so, identification of any
such person or entity and a full explanation of the circumstances;
(3)
A
demonstration of the applicant’s technical, legal and financial
ability to construct and operate the proposed cable facility, including
identification of key personnel;
(4)
A
description of applicant’s prior experience in cable or similar
operations and identification of any other communities in which the
applicant or its principals have, or had, a cable franchise or an
interest therein, including the identification of any litigation involving
any such franchisees and their franchising authorities;
(5)
Identification
of the area to be served by the cable system if the entire city is
not being served;
(6)
A
detailed description of the physical facility proposed, including
channel capacity, technical, technical design, performance characteristics,
headend, and any access facilities to be provided;
(7)
A
description of the construction of the proposed system, including
an estimate of above-ground and below-ground mileage and its location,
the proposed construction schedule, a description, where appropriate,
of how services will be converted from existing facilities to new
facilities, and information on the availability of space on poles
and conduits including, where appropriate, an estimate of the cost
of rearrangement of facilities to accommodate such use;
(8)
A
description of the services to be provided initially;
(9)
The
proposed rate structure including charges for each service tier, installation,
converters, and other equipment or services;
(10)
A demonstration of how the proposal will reasonably meet the future
cable-related needs and interests of the community, including a description
of how the proposal will meet the needs described in any recent community
needs assessment conducted for the city;
(11)
Pro forma financial projections for the first five years of the franchise
term, including statement of income, balance sheets, sources and uses
of funds, and schedule of capital additions, with all significant
assumptions explained in notes or supporting schedules;
(12)
An affidavit of the applicant or authorized officer certifying the
truth and accuracy of the information in the application, and acknowledging
the enforceability of application commitments, and certifying that
the proposal meets all federal and state requirements; and
(13)
Any other information necessary to conform with the requirements
of a request for proposals and information that the city may request
of the applicant.
(f)
An application
for modification of a franchise must include, at minimum, the following
information:
(1)
The
specific modification requested;
(2)
The
justification for the requested modification, including the impact
of the requested modification on subscribers and others, and the impact
on the applicant if the modification is not approved;
(3)
A
statement whether the modification is sought pursuant to Section 625
of the Cable Act, 47 USC §545, and, if so, a demonstration that
the requested modification meets the legal standards of 47 USC §
545; and
(4)
Any
other information necessary for the city to make a determination.
(i)
To be
acceptable for filing an application must be accompanied by a filing
fee in the following amount, as appropriate:
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.19)
(a)
The
city may grant a franchise for a period of time which the city council
determines in its to discretion to best serve the public interest
but not in excess of ten years.
(b)
The
city may make the grant of a franchise conditioned upon the completion
of construction within a prescribed time or upon the performance of
other specific obligations, specifying in the franchise agreement
that failure to timely comply with the condition will cause the franchise
to become null and void without further action by the city.
(c)
In evaluating
an application for a new franchise, the city shall consider the applicant’s
character; the applicant’s technical, financial, and legal qualifications
to construct and operate the proposed system; the nature of the proposed
facilities, equipment, and services; the applicant’s record
in other communities, if any; and whether the proposal will meet anticipated
community needs and serve the public interest.
(d)
Based
upon the application, the written and oral testimony and other material
presented at a public hearing before the council, and any other information
relevant to the application, the council shall decide whether to grant
or deny a franchise application. If two or more competing applications
are filed in response to a request for proposals, the council shall
grant the application which it considers to represent the highest
and best bid in terms of the overall public interest. However, the
council is not obligated to grant any application if it considers
that the public interest is not served thereby.
(e)
If the
council grants a franchise application, the council and the applicant
must agree on the terms of a franchise agreement within 90 calendar
days from the date of the resolution making the grant. This period
may be extended for a good cause by the council. If agreement is not
reached with the council within 90 calendar days or if the period
is not extended, the franchise grant will be null and void without
further action by the city.
(f)
The
text of a proposed franchise agreement must be consistent with the
requirements of this article and be made available by the city to
the public and advertised as required by city procedure.
(h)
The
grant of an initial franchise or a renewed franchise may be subject
to a franchise acceptance fee in an amount not to exceed the city’s
out-of-pocket costs in considering the application, less the amount
of the filing fee. Within 30 calendar days of the date of the resolution
approving the franchise agreement, the city must notify the approved
applicant of the amount of any franchise acceptance fee and its method
of calculation. If the franchise acceptance fee is not paid within
60 calendar days of the date of the council resolution approving the
franchise agreement, the grant will be null and void. Prior to the
franchise becoming effective, the approved applicant must demonstrate
compliance with the surety, insurance and similar provisions of the
franchise agreement.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.20)
(a)
If the
city grants a franchise to a municipal entity to provide cable service
within the city, the provisions of this section shall also apply to
such a franchisee.
(b)
A municipal
franchise entity shall be a corporate entity established under state
law.
(c)
A franchise
agreement with a municipal entity shall not contain terms and conditions
which, when considered in their totality, are unreasonably more favorable
or less burdensome than those contained in an agreement between the
city and a privately owned competitor. However, this provision is
not intended to preclude the city from enforcing less favorable or
more burdensome terms of a franchise agreement with a privately owned
cable operator if those terms were freely and voluntarily agreed to
by the private operator at the time the franchise agreement was executed.
(d)
A municipal
entity which provides utility service in addition to cable service
shall take all reasonable precautions to ensure that its cable operations
are not cross-subsidized by its utility operations. Among other things,
the cable operations shall be conducted by a separate department which
shall have its own books of account that carefully segregate all costs
and revenues from utility operations. All costs directly attributed
to cable operations, including any shared building and personnel costs,
shall be borne by the cable department. The cable department shall
also bear a fair share of all general overhead and indirect costs
of the municipal entity according to an equitable formula.
(e)
Relative
to the television signals to be carried on the system of a municipal
entity, that entity shall establish an independent citizens’
advisory committee which shall be responsible for selecting the identity
of the signals. However, the municipal franchisee shall have the right
to establish the selection parameters, such as the number of signals
to be carried of each general type, and impose cost limits.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.21)
(a)
Unless
a franchise agreement specifies otherwise, the following insurance
coverage shall be in force at all times during the franchise period:
workman’s compensation insurance to meet all state requirements,
and general comprehensive liability insurance with respect to the
construction, operation and maintenance of a cable system, including
the operation of motor vehicles, in the following minimum amounts:
(1)
For
bodily injury, including death, $1,000,000.00 for any one person,
and $2,000,000.00 for any one accident;
(2)
For
property damage $1,000,000.00; and
(3)
For
damages resulting from a liability of any nature that may arise from
or be occasioned by the operation of the cable system, including any
communication over the cable system, excepting programming on government
channels, $2,000,000.00.
(b)
All
insurance policies must be with sureties qualified to do business
in Texas and in a form approved by the city attorney. The city may
require in a franchise agreement coverage and amounts in excess of
the above minimum.
(c)
A franchise
must, at its sole cost and expense, indemnify, hold harmless, and
defend the city, its officials, boards, commissions, agents and employees,
against any and all claims, suits, causes of action, proceedings and
judgments for damages or equitable relief arising out of the construction,
maintenance or operation of its cable system regardless of whether
the act or omission complained of is authorized, allowed or prohibited
by the franchise. This provision includes, but is not limited to,
claims arising out of copyright infringements or a failure by the
franchisee to secure consents from the owners, authorized distributors,
or licensees of programs to be delivered by the cable system.
(d)
The
franchise agreement may require the franchisee to have in force at
all times a performance bond or an irrevocable letter of credit in
an amount as necessary to ensure the faithful performance by the franchisee
of its obligation under the franchise agreement. Such surety instruments
must be provided by an entity qualified to do business in the state
and in a form approved by the city attorney.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.22)
(a)
Prior
to the franchise becoming effective, the city may require a franchisee
to post a cash security deposit as specified in the franchise agreement
to be used as a security and to ensure the faithful performance of
all provisions of law and the franchise agreement and compliance with
all orders, permits and directions of the city, and the payment by
the franchisee of any claims, liens or taxes due the city which arise
by reason of the construction, operation or maintenance of the system.
(b)
The
city shall place any such security deposit in an interest bearing
account. The interest will accrue to the benefit of the franchisee
but may not be withdrawn; all interest will be added to and become
part of the original security fund during the term of the franchise.
(c)
If a
franchisee fails to pay the city any fees or taxes due, liquidated
damages, damages, or costs or expenses incurred by the city by reason
of any act or default of the franchisee, or if the franchisee fails
to comply with any provision of the franchise agreement that the city
reasonably determines can be remedied by an expenditure of the security
fund, the city may, after ten calendar days notice to the franchisee,
withdraw the amount with any interest from the security fund. Upon
such withdrawal, the city shall notify the franchisee of the amount
and date of the withdrawal.
(d)
Within
30 calendar days after notice to it that an amount has been withdrawn
by the city from the security fund, the franchisee must deposit a
sum of money sufficient to restore the security fund to the original
amount. If the franchisee fails to restore the security fund to the
original amount within 30 calendar days, the entire security fund
remaining may be forfeited, and/or such failure may be considered
a material breach of this article and may be used as ground for revocation
of the franchise.
(e)
The
security fund will become the property of the city in the event the
franchise is revoked. The franchises is entitled to the return of
the security fund that remains following termination of the franchise,
less any outstanding default or unpaid amounts owed to the city by
the franchisee.
(f)
The
rights reserved to the city with respect to the security fund are
in addition to all other rights of the city whether reserved by this
article or authorized by other law, and no action, proceeding or exercise
of a right with respect to such security fund will affect any other
right the city may have.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.23)
(a)
The
following minimum requirements for facilities and services apply to
all franchises. The city may require that a franchise exceed these
minimum requirements:
(1)
A
cable system franchised or refranchised after the effective date of
this article must have a minimum capacity of 65 video channels available
for immediate or potential use and have the capability for two-way
communications.
(2)
A
cable system may be required to provide one or more access channels
for public, educational or governmental access or reserve channels
for future access use.
(3)
A
cable system must provide leased access channels as required by federal
law.
(4)
Service
to public buildings may be required without charge as set forth in
the franchise agreement.
(5)
A
cable system must provide an emergency override capability to allow
city officials to transmit information to viewers on all channels
in the event of a public emergency.
(b)
The
city may waive minimum requirements of this section where, in the
judgment of the city, such waiver is justified in the public interest.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.24)
(a)
Unless
a franchise agreement provides otherwise, a franchisee, in consideration
of the privilege granted under a franchise for the use of public rights-of-way
to construct and operate a cable system, must pay to the city a maximum
of 5% or a maximum allowed by law of the franchisee’s gross
revenues derived from the operation of its cable system within the
city during the period of its franchise. Franchisee fees are payable
quarterly. A franchisee must pay the franchise fee due to the city
for the preceding quarter within 30 calendar days of the end of that
quarter.
(b)
Any
payment of franchise fees to adjust for a shortfall in the quarterly
payments for the preceding year must be made no later than the filing
date for the annual financial statements. Adjustments for any overpayment
will be credited to subsequent quarterly payments.
(c)
Unless
a franchise agreement provides otherwise, franchisee fee payments
shall be accompanied by a financial statement showing the gross revenues
received by the franchisee, with separate subtotals for each type
of service for which a separate charge is made, during the period
covered by the payments and the number of subscribers served, with
subtotals reflecting the number for each type of service, at the end
of the period.
(d)
A franchisee
must file within three months of the end of its fiscal year the franchisee’s
annual financial statements for the preceding year audited by a certified
public accountant or certified as accurate by the franchisee’s
chief financial officer. The franchisee will bear the cost of the
preparation of such financial statements.
(e)
The
city may inspect and audit any and all books and records of the franchisee,
and recompute any amounts determined to be payable under the franchise.
The cost of the audit will be borne by the franchisee if the annual
payment to the city is increased by more than 5% as result of the
audit.
(f)
In the event that a franchise payment is not received by the city on or before the due date, interest will be charged from the due date at an interest rate of 1½% per month. In addition the franchisee will pay a late charge of 5% of the amount of such payment. Interest and late charges will not be imposed for any payment necessary as a result of the yearly adjustment provided for in subsection (b) above, if the payment to correct for a shortfall does not exceed 10% of the total payments made during the year. In the event such payment exceeds 10% of the total payments made during the year, the franchisee will be liable for interest and late charges for the entire amount due.
(g)
When
a franchise terminates for whatever reason, the franchisee must file
with the city within 90 calendar days of the date its operations cease,
a financial statement, audited by a CPA or certified by the franchisee’s
chief financial officer, showing the gross revenues received by the
franchisee since the end of the previous fiscal year. Adjustments
will be made at the time for franchise fees due to the date that the
franchisee’s operations ceased.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.25)
(a)
Within
three months of the close of its fiscal year, a franchisee must file
with the city an annual report that includes the following information:
(1)
A
summary of the previous calendar year’s activities in development
of the system.
(2)
A
financial statement, including a statement of income, a balance sheet,
and the number of subscribers it served at the end of the year. The
statement shall include notes that specify all significant accounting
policies and practices upon which it is based.
(3)
A
copy of updated maps depicting the location of all trunks where there
was construction in the year of the report.
(4)
If
the franchisee is a corporation, a list of officers and members of
the board and the officers and board members of any parent corporation;
and where a parent corporation’s stock is publicly traded, a
copy of its most recent annual report.
(5)
A
list of all partners or stockholders holding 5% or more ownership
interest in the franchisee and any parent corporation. However, when
any such entity has fewer than ten persons holding 5% ownership interest,
the ten largest such holders.
(6)
A
copy of all the franchisee’s rules and regulations applicable
to subscribers and users of the cable system.
(b)
A franchisee
must maintain a complete set of books and records available for inspection
upon reasonable prior notice by the city during normal business hours.
(c)
Upon
written request of the franchisee and approval by the city attorney,
information of a proprietary nature submitted to the city pursuant
to this article or a franchise agreement will not be made available
for public inspection, unless otherwise required to be made available
pursuant to applicable law.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.26)
(a)
A franchisee
must maintain in the city a business office open during normal business
hours with a listed local telephone number and employ a sufficient
number of telephone lines to allow reasonable access by subscribers
and members of the public. When the business office is closed, an
answering machine or service capable of receiving service complaints
and inquires must be employed.
(b)
A franchisee
must have available at all times personnel, equipment and procedures
capable of locating and correcting major system malfunctions. Major
system malfunctions must be corrected without delay. Corrective action
for all other malfunctions must be initiated not later than the next
business day after the subscriber service call is received, and must
be completed as promptly as possible.
(c)
A franchisee
must provide each subscriber at the time cable service is installed
written instructions for placing a service call, filing a complaint,
or requesting an adjustment. Each subscriber must also be provided
with a schedule of the subscriber’s rates and charges, a copy
of the service contract, delinquent subscriber disconnect and reconnect
procedures, and a description of any other of the franchisee’s
policies in connection with its subscribers.
(d)
A franchisee
must maintain a complete record of service complaints received and
action taken. These records must be open to the city for inspection
during normal business hours. Such records must be retained for not
less than two years.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.27)
(a)
Unless
approved by the city and to the extent consistent with federal law,
no franchisee may in its rates or charges, or in the availability
of the services or facilities of its system, or in any other respect,
make or grant undue preferences or advantages to any subscriber or
potential subscriber to the system, including preferences based on
the geographic location of the subscriber, or to any user or potential
user of the system, nor subject any such persons to any undue prejudice
or any disadvantage.
(b)
A franchisee
must not deny cable service to any potential subscribers because of
the income of the residents of the area in which the subscribers reside.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.28)
(a)
A franchisee
must utilize, with the owner’s permission, existing poles, conduits
or such other facilities whenever possible. Copies of agreements for
use of poles, conduits or other facilities must be filed with the
city upon city request.
(b)
All
transmission lines, equipment and structures must be installed and
located to cause minimum interference with the rights and reasonable
convenience of property owners. The city may from time to time issue
such reasonable rules and regulations concerning the installation
and maintenance of the cable system installed in the public rights-of-way
as may be consistent with this article and the franchise agreement.
(c)
Suitable
safety devices and practices as required by local, city, state and
federal laws, ordinances, regulations and permits must be used during
construction, maintenance and repair of a cable system.
(d)
A franchisee
must remove, replace or modify at its own expense the installation
of any of its facilities within any public right-of-way when required
to do so by the city to allow it to change, maintain, repair or improve
a public thoroughfare.
(e)
On streets
and roads where electrical and telephone utility wiring are located
underground, either at the time of initial construction or subsequently,
the cable must also be located underground at the franchisee’s
expense. Between a street or road and a subscriber’s residence,
the cable must be located underground if the electrical and telephone
utility wiring are located underground. If either electric or telephone
utility wiring is aerial, a franchisee may install aerial cable except
where a property owner or resident requests underground installation
and agrees to bear the additional cost over aerial installation.
(f)
A franchisee
must obtain any required permits before causing any damage or disturbance
to public thoroughfares or private property as a result of its construction
or operations and must restore to their former condition such private
property and public thoroughfares, the latter in a manner approved
by the city. If such restoration is not satisfactorily performed within
a reasonable time, the city, or the property owner in the cases of
private property, may, after prior notice to the franchisee, cause
the repairs to be made at the expense of the franchisee.
(g)
A franchisee
may trim trees within public rights-of-way at its own expense as necessary
to protect its wires and facilities, subject to any direction that
may be provided by the city. Trees on private property may be trimmed
with the consent of the property owner.
(h)
At the
request of any person holding a valid building moving permit and upon
sufficient notice, the franchisee must temporarily raise, lower or
cut its wires as necessary to facilitate such move upon not less than
72 hours advance notice. The direct expense of such temporary changes,
including standby time, must be paid by the permit holder and the
franchisee may require payment in advance.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.29)
(a)
A franchisee must protect the privacy of all subscribers pursuant to the provisions of Section 631 of the Cable Act, 47 USC §551. A franchisee must not condition subscriber service on the subscriber’s grant of permission to disclose information which, pursuant to federal law, cannot be disclosed without the subscriber’s explicit consent.
(b)
It is
unlawful for any person to intercept or use any video, voice, or data
signal transmissions over a cable system, unless such interception
or use is authorized by the franchisee or other person having the
lawful right to authorize the reception or use.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.30)
(a)
Any
cable system constructed within the city must meet or exceed technical
standards consistent with this article, the franchise agreement, and
the franchisee’s application. The system must meet all FCC technical
standards and be capable of delivering all National Television Systems
Committee (NTSC) color and monochrome standards signals and designed
to provide superior picture quality and reliability. All television
signals transmitted on a cable system must include any closed captioning
information for the hearing impaired. Antennas, supporting structures,
and outside plant used in the system must be designed to comply with
the recommendations of the Electronics Industries Association on tower
structures and outside plant.
(b)
All
construction, installation and maintenance must comply with the National
Electric Code, and all state and local regulations, and good and accepted
industry practices.
(c)
At the
stages of any construction specified in the franchise agreement, the
franchisee must perform at its expense, proof of performance test
designed to demonstrate compliance with the requirements of this article,
the franchise agreement, and FCC requirements. The franchisee must
provide the proof of performance test results promptly to the city.
(d)
The
city may require periodic proof of performance tests to be performed
at the expense of the franchisee. The franchisee must provide the
test results promptly to the city.
(e)
The
franchisee must advise the city when a proof of performance test is
scheduled so that the city may have an observer present if it desires.
(f)
A franchisee
must not design, install or operate its facilities in a manner that
will interfere with the signals of any broadcast station, the electrical
system located in any building, the cable system of another franchisee,
or individual or master antennas used for receiving television or
other broadcast signals.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.31)
(a)
The
city has the right to apply any one or combination of the following
remedies in the event a franchisee violates any provision of the law
or its franchise agreement:
(1)
Impose
liquidated damages in such amount, whether per day, incident, or other
measure of violation, as provided in the franchise agreement. Payment
of liquidated damages by the franchisee will not relieve the franchisee
of its obligation to meet the franchise requirements.
(b)
In determining
which remedy or remedies are appropriate, the city must take into
consideration the nature of the violation, the person or persons bearing
the impact of the violation, the nature of the remedy required in
order to prevent further violations, and such other matters as the
city determines are appropriate.
(c)
In addition
to or instead of any other remedy, the city may seek legal or equitable
relief from any court or competent jurisdiction.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.32)
(a)
If a
franchisee decides to initiate a formal franchise renewal process
in accordance with Sections 626(a) through (g) of the Cable Act, being
47 USC §§ 546(a) through (g), it must notify the city within
30 to 36 months of the franchise expiration date. Upon such notification,
or at the city’s own initiative, the city must commence the
following process:
(1)
The
city shall review and evaluate the future cable-related community
needs and interests and the franchisee’s past performance. The
review and evaluation process must include opportunity for public
comment.
(2)
Immediately
upon completion of the review and evaluation process, the city must
provide a copy of its findings to the franchisee and provide notice
that the franchisee may file a renewal application. Such notice must
specify the information to be included in the renewal application
and the deadline for filing the application, which must be no earlier
than 30 calendar days following the date of the notice. If the franchisee
does not submit a renewal application by the specified date, it will
be deemed not to be seeking renewal of its franchise.
(3)
Upon
receipt of the renewal application, the city shall publish notice
of its receipt and may schedule one or more public meetings or implement
other procedures under which comments from the public on the application
may be received.
(b)
In considering
a renewal application, the city must consider whether:
(1)
The
cable operator has substantially complied with the material terms
of the existing franchise and with applicable law;
(2)
The
quality of the cable operator’s service, including signal quality,
response to consumer complaints, and billing practices (but without
regard to the mix, quality, or level of cable services or other services
provided over the system) has been reasonable in light of community
needs;
(3)
The
cable operator has the financial, legal and technical ability to provide
the services, facilities, and equipment set forth in its proposal;
and
(4)
The
cable operator’s proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the cost of meeting
such needs and interests.
(c)
The
city council shall hold at least one public hearing to consider the
application. An advisory committee or a committee of the council may
make recommendations to the council prior to its consideration, a
copy of which recommendations shall be made available to the franchisee
in advance of the council’s consideration. Following the public
hearing on the renewal application, the council must either:
(e)
If a
preliminary assessment is made that a franchise should not be renewed,
at the request of the franchisee or on its own initiative, the city
must commence an administrative proceeding in accordance with Section
626(c) of the Cable Act, 47 USC § 546(c).
(f)
The
city shall commence an administrative proceeding, initiated by a hearing
order which establishes the issues to be addressed in the hearing
and the procedures to be followed and appoints a presiding officer
for the hearing. Upon the completion of the hearing, the presiding
officer shall issue a recommended decision. Parties to the hearing
and the public shall have calendar days to comment on the recommended
decision after its issuance.
(g)
Based
on the recommended decision, the comment and arguments presented,
and other evidence of record, the council, following a public hearing,
shall make a final determination on whether to grant or deny the renewal
application. The council shall issue a written decision setting forth
the reasons for its decision.
(h)
The provisions of subsections (a) through (g) above notwithstanding, a franchisee may submit a proposal for renewal of a franchise in conformance with 47 USC §546(h). Before taking any action on such an informal proposal, the city must hold one or more public hearings or implement other procedures under which comments on the proposal from the public may be received. Following such public hearings or other procedures, the council shall determine whether the franchise should be renewed and the terms and conditions of any renewal. In making its determination the council shall not consider the pendency of any other application for a franchise.
(i)
Once
the council grants a renewal application, the city and the franchisee
must agree on a franchise agreement, pursuant to the procedures specified
in Section 4.111(e) through (h), before the renewal becomes effective.
(j)
If renewal
of a franchise is denied, the city may require the former franchisee
to remove its facilities and equipment. If the former franchisee fails
to do so within a reasonable period of time, the city may have the
removal done at the former franchisees and/or surety’s expense.
(k)
Notwithstanding
47 USC §546(a) through (h), any lawful action to revoke a cable
operator’s franchise for cause shall not be negated by the subsequent
initiation of renewal proceedings by the cable operator under this
section. [47 USC §546(i)].
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.33)
(a)
A transfer
of a franchise must not occur without prior approval of the city.
(b)
An application to transfer a franchise must meet the requirements of Section 4.110 and provide complete information on the proposed transaction, including details on the legal, character, financial, technical and other pertinent qualifications of the transferee, and on the potential impact of the transfer on subscriber rates. At minimum, the information required in Section 4.110(e)(1)through (4) must be provided by the proposed transferee. The information required in Section 4.110(e)(5) through (10) must also be provided whenever the proposed transferee expects material changes to occur in those areas.
(c)
Final
action on an application for transfer of a franchise must be taken
by the city council. In making a determination on such an application,
the council will consider the legal, financial, technical and character
qualifications of the transferee to operate the system and whether
operation by the transferee would adversely affect the cable service
to subscribers or otherwise be contrary to the public interest.
(d)
Approval
by the city of a transfer of a franchise does not constitute a waiver
or release of any of the rights of the city under this article or
the franchise agreement.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.34)
(a)
A franchise
may be revoked by the city council for failure to construct as required,
operate or maintain the cable system as required by this article or
the franchise agreement or for other material breach of this article
or the franchise agreement, including, but not limited to, a finding
in a court of law that the franchisee has engaged in practices within
the city that are in violation of federal or state antitrust laws.
However, where the city has issued a franchise specifically conditioned
upon the completion of construction or other specific obligation by
a specified date pursuant to Section 4.111(b), failure of the franchisee
to complete construction or comply with other specific obligation
as required will result in the automatic forfeiture of the franchise
without further action by the city, unless the city, at its discretion
and for good cause demonstrated by the franchisee, grants an extension
of time. If within 30 calendar days following written notice from
the city to the franchisee that it is in material breach of this article
of the franchise agreement, the franchisee has not taken corrective
action or corrective action is not being actively and expeditiously
pursued, the council, acting on its own motion or upon the recommendation
of the city manager, may give written notice to the franchisee of
its intent to consider revocation of the franchise or reducing its
term, stating its reasons.
(b)
Before
final action can be taken, the council shall hold a public hearing
at which time the franchisee and members of the public must be given
an opportunity to present evidence and make argument. Following the
public hearing, the council shall determine whether or not to revoke
the franchise or reduce its term based on any recommended decision,
the evidence and argument presented at the hearing, and other evidence
of record. The council’s determination shall be reflected in
a written opinion setting forth the reasons for its decision.
(c)
Any
franchise may, at the option of the city, be revoked 120 calendar
days after as assignment for the benefit of creditors or the appointment
of a receiver or trustee to take over the business of the franchisee,
whether in a receivership, reorganization, bankruptcy assignment for
the benefit of creditors, or other action or proceeding, unless within
that 120-day period:
(1)
Such
assignment, receivership or trusteeship has been vacated; or
(2)
Such
assignee, receiver or trustee has fully complied with the terms and
conditions of this article and the franchise agreement and has executed
an agreement, approved by the court, having jurisdiction, assuming
and agreeing to be bound by the terms, and conditions of the franchise.
(d)
In the
event of foreclosure or other judicial sale of any of the facilities,
equipment or property of a franchisee, the city may revoke the franchise
by serving notice upon the franchisee and the successful bidder at
the sale, in which event the franchise and all rights and privileges
of the franchise will be revoked 30 calendar days after serving such
notice, unless:
(e)
If the
city revokes a franchise, or if for any other reason a franchisee
abandons, terminates or fails to operate or maintain service to its
subscribers, the following procedures and rights are effective:
(1)
The
city may require the former franchisee to remove its facilities and
equipment. If the former franchisee fails to do so with a reasonable
period of time, the city may have the removal done at the franchisee’s
and/or surety’s expense.
(2)
If
a cable system is abandoned by a franchisee, the city may sell, assign
or transfer all or part of the assets of the system.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.35)
(a)
It is
the right of all subscribers to receive all available services from
the franchisee as long as their financial and other obligations to
the franchisee are satisfied.
(b)
In the
event of a termination or transfer of the franchise for whatever reason,
the franchisee must do everything in its power to ensure that all
subscribers receive continuous, uninterrupted service through the
existing facilities unless the subscribers can reasonably be served
by a competing cable operator. Where necessary, the franchisee must
cooperate with the city to operate the system for a temporary period
following termination or transfer as required to maintain continuity
of service to all subscribers.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.36)
It is unlawful for any person to offer any gift, favor, loan,
service, promise, employment or anything of value to a city official
or employee, or for a city official or employee to solicit or accept
any such thing of value, for the purpose of influencing the grant,
modification, renewal, transfer, or any other matter affecting a franchise
or the administration or enforcement of this article.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.37)
(a)
Authority.
The authority for the regulation of basic service by the city
is the Cable Television Consumer Protection and Competition Act of
1992 (“Cable Act of 1992”).
(b)
Purpose.
The purpose of this section is to implement the rate regulation
provisions of the Cable Act of 1992 and to administer Federal Communications
Commission (FCC) requirements. Should the FCC modify the provisions
of their rules and regulations, the city shall comply with and administer
the modified rules and regulations.
(c)
Rate
Regulation Process.
(1)
The
cable operator has 30 days from the date of notification to submit
schedules and supporting information. Justification will be provided
on FCC form 193 (benchmark calculation). The cable operator may invoke
a cost of service review on the grounds that its costs require higher
rates than the benchmark allow.
(2)
The
city shall, within 30 days of receipt of the filing of the request,
issue a written order that:
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.38)
(a)
If requested
by the city, applications for a franchise or franchise renewal shall
include proposals for the provision of access channels sufficient
to meet community needs during term of franchise as determined by
city, and shall specify what grants, if any, it is willing to make
for equipment and facilities to be used for local program production
by cable access users.
(b)
Any
access channel operations must conform to the following minimum requirements:
(1)
Access
channels shall be carried on the franchisee’s lowest priced
service offering.
(2)
The
franchisee shall have no control over the content of any programming
carried on access channels. The city may require a franchisee, or
select a nonprofit corporation or other entity, to manage the access
program and to establish reasonable rules for the use of access channels
consistent with the requirements of this article, the franchise agreement
and the intended purpose of such channels. Such rules shall be subject
to review and approval by the city.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.39)
Unless a franchise agreement specifies otherwise, it shall be
the obligation of a franchisee to serve every area of the city and
provide service to all residents who reasonably request service. In
the event that the city limits are extended, a franchisee shall within
six months thereof expand its system so as to serve the annexed area
that has a minimum housing density of 30 dwelling units per cable
mile that is not otherwise provided service by a cable system.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.40)
(a)
The
city may, upon the approval of the city council, acquire ownership
of, and operate a cable system on behalf of itself or a municipal
entity.
(b)
If the
city exercises its right to purchase a cable system pursuant to this
article or a franchise agreement and the city and franchisee are unable
to agree on a price for the purchase of the system, the price may
be determined by arbitration. Upon written notice by either the city
or the franchisee to the other, the dispute must immediately be put
to arbitration consistent with the rules and procedures of the American
Arbitration Association. The city and the franchisee will each select
a qualified arbitrator. The two persons selected must select a third
qualified arbitrator, and the three arbitrators will constitute a
panel whose decision is binding on both parties. The fees of the last
two arbitrators must be paid by the party selecting such person, and
the third person must be compensated one-half by the city and one-half
by the franchisee. The general costs of the proceeding must be shared
equally by the city and the franchisee.
(c)
Notwithstanding
any other provisions of this article, the city reserves the right
to exercise the power of eminent domain to acquire the property of
any cable system of any franchisee and to purchase, own and/or operate
such system so acquired consistent with state and federal law.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.41)
(a)
The
city may periodically evaluate the performance of a franchisee during
the franchise term, including an evaluation of the picture quality
and reliability of service rendered. A franchisee shall cooperate
fully with this evaluation and supply the city with all relevant information
requested and perform, if requested, any tests reasonably necessary
to the evaluation of the system’s technical performance. If
the city desires to implement a survey of subscribers in connection
with its evaluation of service, a franchisee shall distribute the
city’s questionnaire to its subscribers. Any meetings between
the city and the franchisee for the purpose of evaluation shall be
publicized in advance and open to the public.
(b)
If evaluation
indicates the need for modification to the franchise agreement, the
city shall attempt to negotiate the necessary changes. The city shall
issue a report to the council of the results of the performance evaluation
and any recommended changes to the franchise agreement as negotiated
with the franchisee.
(c)
The
council may hold a public hearing on any performance evaluation reports.
Any franchise agreement modifications must be approved by the council
before they become effective.
(d)
If a performance evaluation results in a report that the performance of a franchisee is in material violation of its obligations under this article or the franchise agreement and the franchisee has failed to undertake adequate corrective measures, the city may initiate enforcement remedies pursuant to Section 4.123.
(1995 Code of Ordinances, Title IX, Chapter 93, Section
93.42)
