The city council has identified the purpose of this article
to be as follows:
(1)
To
provide a procedure for the granting of nonexclusive franchises for
providing cable services in the city.
(2)
To
regulate the erection, construction, reconstruction, installation,
operation, maintenance, dismantling, testing, repair and use of cable
systems in, upon, along, across, above, over or under or in any manner
connected with the streets, public ways or public property within
the jurisdiction of the city as it now or in the future may exist.
(3)
To
provide for the payment of certain franchise fees and other valuable
considerations to the city in exchange for the use of streets, alleys
and other public property held by the city in trust for the citizens
of the city.
(4)
To
provide for regulation of the construction, operation, use and development
of such privately owned but publicly vital systems within the city
for the benefit of the citizens.
(5)
To
provide conditions under which such franchised system or systems will
serve present and future needs of government, public institutions,
commercial enterprises, public and private organizations, and the
citizens and general public of the city.
(6)
To
provide remedies and prescribe penalties and liquidated damages for
any violation of this article and the terms and conditions of franchises
granted pursuant thereto.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-136)
For the purpose of this article, the following terms, phrases,
words and their derivations shall have the meaning given herein:
A single channel dedicated in whole or in part for local
programming which is not originated by a grantee.
Any person or entity which directly or indirectly owns or
controls the grantee, any person or entity which the grantee directly
or indirectly owns or which it controls, or any person or entity under
common ownership or control with the grantee.
The person or company applying or submitting a proposal for
a franchise.
Any service tier which includes the retransmission of local
television broadcast signals.
The applicable provisions of the Cable Communications Policy
Act of 1984, Public Law No. 98-549, as amended by the Cable System
Consumer Protection and Competition Act of 1992, Public Law No. 102-385,
and the Telecommunications Act of 1996, Public Law No. 104-104.
All facilities to be constructed as a part of a cable system.
The one-way transmission to subscribers of video programming
and other programming services, together with subscriber interaction,
if any, which is required for the selection of such programming and
programming services that the grantee makes available to all subscribers
generally, and may not include information that is subscriber specific.
If information transmitted on a cable system is made available only
to an individual subscriber or to a discrete group of subscribers,
the transmission of this information is not a cable service. Information
that is of interest or use to only a particular class of customers
may still be offered over a cable system as a cable service as long
as it is made generally available to all subscribers (i.e., to all
subscribers generally). Examples of cable services would be video
programming, pay-per-view, voter preference polls in the context of
video program rating services, cable modem, high-speed data Internet
and institutional network services, teletext, one-way transmission
of any computer software and one-way video text services such as news
services, stock market information, and online airline guides and
catalog services that do not allow customer purchases. It shall also
mean enhanced, advanced cable services over a cable system as a cable
service (and not as a telephone service, with accompanying telephone
regulation) as defined in the Telecommunication Act of 1996.
A facility, or any part thereof, 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 the city, subject to all applicable laws and regulations. Such
term does not include:
A facility that serves only to retransmit the television signals
of one (1) or more television broadcast stations;
A facility that serves subscribers without using any public
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of title II of the Cable Communications
Act of 1984, except that such facility shall be considered a cable
system (other than for purposes of section 621(c)) to the extent such
facility is used in the transmission of video programming directly
to subscribers;
An open video system that complies with section 653 of the cable
act; or
Any facilities of any electric utility used solely for operating
its electric utility system.
The City of Odessa, Texas, in its present configuration or
as it may be changed by annexation.
All real property owned by the city, other than public rights-of-way
as that term is defined herein, and all other property held in a proprietary
capacity by the city that is not subject to public right-of-way licensing
and franchising as provided in this article.
The terms “construction,” “completion of
construction,” “complete system construction,” “satisfactorily
complete” and “fully activate” mean that strand
has been put up and all necessary cable (including trunk and feeder
cable or fiber) has been lashed or, for underground construction,
that all cable has been laid and trenches refilled, all road services
restored and, except as prevented by weather conditions or delayed
because of seasons, landscaping restored; that all amplifier housing
and modules have been installed (including modules for return path
signals if included in the grantee’s technical proposal); that
power supplies have been installed and all bonding and grounding has
been completed; that all necessary connectors, splitters and taps
have been installed; that construction of the headends or hubs have
been completed and all necessary processing equipment has been installed;
and that any and all other construction necessary for the system to
be ready to deliver cable service to subscribers has been completed.
Proof of performance tests shall have been conducted on each otherwise
completed segment of the cable system before direct marketing of that
segment begins. It is expected that segments of less than the entire
system will be activated and proofed when completed. Construction
of any segment or of the entire system will not be considered complete
until proof of performance tests have been conducted on such segment
(or, in the case of the entire system, on all segments of the cable
system) and any problems found during testing have been corrected.
The term “completion of construction” does not include
marketing and installation of subscriber service.
The governing body of the city.
Calendar days, unless otherwise specified.
To make available channel space or equipment for exclusive
use of the designated user, subject to the authority of the city council
to authorize reassignments of channels.
The original cost of all of the cable system’s tangible
assets less all accumulated depreciation recorded on the grantee’s
books and audited financial statements in accordance with generally
accepted accounting principles, unless otherwise defined or regulated
by federal, state or local statutes or regulations with specific application
in effect at or on the date the city exercises its purchase option
rights under this article. The depreciated value shall be calculated
to the end of the grantee’s last fiscal year and shall not include
“goodwill” or any value attributed to the franchise.
The price that a willing buyer would pay to a willing seller
for a going concern based on the system valuation and sale multiples
prevailing in the industry at the time at which the council elects
to exercise its option, but with no value allocated to the franchise
itself.
The level of return calculated by using the net present value
technique, and shall at least equal a grantee’s cost of capital.
The Federal Communications Commission, its designee, or any
successor thereto.
The right granted through a contractual agreement between
the city and a person by which the city authorizes such person to
erect, construct, reconstruct, operate, dismantle, test, use and maintain
a cable system in the city. Any franchise awarded by an agreement
in accordance herewith shall be a nonexclusive franchise.
An agreement entered into between the city and a grantee
which is enforceable by the city and the grantee and which sets forth
the rights and obligations between the city and the grantee arising
out of the franchise.
The area within the boundaries established by the franchise
agreement and the area within which the grantee shall construct and
operate the cable system.
The person or other legal entity to whom a franchise under
this article is granted by the council, agents or employees, and their
or its lawful successors and assigns.
The city as represented by the city council or any delegate
acting within the scope of their jurisdiction.
All revenues derived from cash sales, customer credit account
sales, property of any kind or nature or from any source whatever
received or accruing to a grantee directly or indirectly arising from
or attributable to the sale or exchange of cable or noncable services
by a grantee within the city from the operation of its cable system
recorded and reported on a full accrual basis of accounting in accordance
with generally accepted accounting principles. Gross revenues shall
include, but not be limited to, all cable and noncable service fees,
franchise fees, pay television and pay-per-view fees, leased channel
fees, connector rentals or sales, studio rentals, Internet services,
and advertising revenue. Except that gross revenue shall not include
converter deposits (unless the deposit is forfeited or is nonrefundable
after a specified period of time), refunds to subscribers by a grantee,
or receipts from sales or use taxes or any other taxes that a grantee
collects on behalf of any taxing authority.
With respect to a particular segment, group of segments or
the entire cable system, as the case may be, means that all proposed
services and system capabilities as stated in the proposal are available
and/or in place, construction has been completed (see definition of
construction) and the completed segment or segments in question or
the entire cable system, as the case may be, has been activated.
Programming locally produced by the grantee.
This article and all of its provisions.
Any person, firm, partnership, association, company, corporation
or organization of any kind.
A formal proposal by a qualified cable company to provide
cable services to residents, businesses, industries, and institutions
in the city.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, easement or similar property
in which the city holds any property interest (fee title, easement
or otherwise) or exercises any rights of management or control.
Any highway, street, bridge, tunnel, alley, parkway or walkway
for vehicular or pedestrian travel under the jurisdiction and control
of the city which has been acquired, established, dedicated or devoted
to purposes not inconsistent with cable facilities.
Services required by this article and the franchise agreement.
Any person who contracts to purchase, orally or in writing,
the regular subscriber service and/or any one (1) or more other services
as may be provided by a grantee’s cable system.
The number of subscribers determined as follows: In the event
a single fee is paid for service to a multiple-dwelling unit, the
number of equivalent subscribers shall be determined by dividing such
fee by the then-prevailing regular subscriber service rate and rounding
the resulting quotient to the nearest whole number. To this number
shall be added the number of all other subscribers.
A party utilizing a cable system channel for purposes of
production or transmission of material to subscribers, as contrasted
with receipt in a subscriber capacity.
The terms “will be available,” “will be
equipped,” “will use,” “be designed,”
“will perform,” “will be utilized,” “will
permit,” “will provide,” “will include,”
“will employ,” “will be established,” “will
be able,” “will be implemented,” “will be
delivered,” “will utilize,” and other similar uses
of terms in a company’s proposal denoting the activation of
cable service or the delivery of equipment, facilities, or services
shall be interpreted to mean delivery or accomplishment at a date
no later than the initial activation of service (see definition) unless
otherwise expressly and clearly stated or qualified in the company’s
proposal to mean a more specific or different time.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-137)
The grantor may grant a franchise for all or any defined portion
of the city, herein referred as a “franchise area.” The
“service area” shall be all of the franchise area as defined
in the franchise agreement. The “initial service area”
shall be that portion of the franchise area scheduled to receive initial
service, as stated in the franchise agreement. The grant of a franchise
to operate a cable system shall not authorize telecommunications services,
which shall require a separate franchise.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-138)
In the event that the grantor shall grant to a grantee a franchise
to construct, operate, maintain, and reconstruct on public rights-of-way
a cable system within the franchise area, or a renewal of an existing
franchise, said franchise shall constitute both a right and an obligation
to provide the services of a cable system as required by the provisions
of this article and the franchise agreement. The franchise agreement
shall include those provisions of the grantee’s “application”
or “proposal” that are finally negotiated and accepted
by the grantor and grantee. The grantee is encouraged to consider
the offer of the use of facilities to the grantor for municipal purposes
that will make for greater efficiency and public safety and reduce
the public cost without being considered a part of the franchise fee.
The acceptance and effective date shall be as follows:
(1)
No
franchise granted pursuant to the provisions of this article shall
become effective unless and until all things required in this section
are done and completed, all of such things being hereby declared to
be conditions precedent to the effectiveness of any such franchise
granted hereunder. In the event any of such things are not done and
completed in the time and manner required, the council may declare
a franchise null and void. Facilities offered for use to the grantor
by the grantee without charge will be returned to the grantor on termination
of the franchise.
(2)
Within
thirty (30) days after the effective date of an ordinance granting
a franchise or within such extended period of time as the city council
in its discretion may authorize, a grantee shall file with the city
secretary its written acceptance of the franchise in a form satisfactory
to the city, together with evidence of the insurance policies required
by the ordinance, agreeing to be bound by and to comply with and to
do all things required of the grantee by the provisions of this article
and the franchise. Such acceptance and agreement shall be acknowledged
by the grantee before a notary public.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-139)
Any franchise granted under the terms and conditions contained
herein shall be consistent with federal laws and regulations and state
general laws and regulations. In the event of conflict between the
terms and conditions of the franchise and the terms and conditions
on which the grantor can grant a franchise, the general law and/or
statutory requirements shall, without exception, control.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-140)
Any franchise granted is hereby made subject to the general
ordinance provisions now in effect or hereafter made effective. In
the franchise agreement, the grantee shall agree to be bound by the
ordinances of the city, which shall be incorporated therein by reference.
Nothing in the franchise shall be deemed to waive the police powers
of the city or the requirements of the other codes and ordinances
of the grantor regarding permits, fees to be paid or manner of construction.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-141)
From and after the effective date of this article, it shall
be unlawful for any person to construct, install or maintain within
any public rights-of-way in the city, or within any city property,
or within any privately owned area within the city which has not yet
become a public street but is designated or delineated as a proposed
public street on any tentative subdivision map approved by the city,
any equipment or facilities for the purpose of operating a cable system
unless a franchise authorizing such use of such street or property
or area has first been obtained pursuant to the provisions of this
article, and unless such franchise is in full force and effect.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-142)
The grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of the art in the cable industry. Such requirements shall not be retroactive to franchises then in effect, except as necessary to exercise the police power of the city, or as provided in section 4-15-47, but shall become applicable when the franchise is renewed.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-143)
The term of any new franchise and all rights, privileges, obligations,
and restrictions pertaining thereto shall be as established in the
franchise agreement, unless terminated sooner as hereinafter provided.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-144)
Any franchise granted shall be nonexclusive. The grantor specifically
reserves the right to grant, at any time, such additional franchises
for a cable system as it deems appropriate; provided, however, that
such additional grants shall not operate to materially modify, revoke,
or terminate any rights previously granted to any grantee.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-145)
This article shall supersede and replace prior ordinances to
the extent that any other ordinance of the city shall conflict with
the provisions of this article, and this article shall prevail. However,
the enactment of this article shall not affect rights and duties that
accrued, penalties that were incurred, or proceedings that were begun
before the effective date of this article. Therefore, all prior ordinances
effectively repealed by this article shall be treated as remaining
in force for the purpose of sustaining any action or prosecution for
the enforcement of rights, penalties, forfeitures or liabilities.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-146)
If any section, sentence, clause or phrase of this article is
held unconstitutional or otherwise invalid for any reason, such infirmity
shall not affect the validity of the remainder of this article. Provided,
however, that in the event that state or federal government laws or
regulations render any section invalid, then such section or sections
may be renegotiated by the city and a grantee.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-147)
Whenever a franchise or contract shall set forth any time for
an act to be performed by or on behalf of the grantee, such time shall
be deemed of the essence, and any failure of the grantee to perform
within the time allotted and after having failed to exercise a right
to cure shall always be sufficient ground for the city to invoke liquidated
damages or revocation of a franchise.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-148)
A grantee shall not be excused from complying with any of the
terms and conditions of a franchise agreement or this article by any
failure of the city upon any one (1) or more occasions to insist upon
or to seek compliance with any such terms or conditions of this article
or the franchise.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-149)
The city hereby expressly reserves the following rights:
(1)
To
exercise its governmental powers, now or hereafter, to the full extent
that such powers may be vested in or granted to the city.
(2)
To
adopt and promulgate ordinances as it shall find reasonably necessary
in the lawful exercise of its police power. Such power shall include
the absolute right of the city to maintain control over its public
streets and public rights-of-way, and to adopt such reasonable regulations
relating to public streets and public rights-of-way as the city shall
hereafter provide. The grantee may reserve such rights as are stated
in the franchise agreement.
(3)
The
powers of the city may be exercised through amendment of this article
as well as through enactment of separate ordinances and regulations.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-150)
(a)
A
grantee shall pay monthly to the city’s director of finance,
or his designee, in consideration of the granting of a franchise to
use the public rights-of-way for the operation of a cable system,
five (5) percent of its annual gross revenues (as herein defined)
or such higher rate as allowed by law for the period of its operation
under the franchise. The five-percent or higher payment will be calculated
for each calendar month (calculation month) and will be due and payable
on the last day of the month immediately after the calculation month.
Any payment not made by the last day of the month following the calculation
month will be late.
(b)
A
grantee shall file with the city’s director of finance, or his
designee, within thirty (30) days after the end of each of the grantee’s
fiscal quarters, a financial statement reporting gross revenues earned
during the current fiscal year to date by the grantee. The grantee
shall also file an annual audited financial statement prepared by
an independent certified public accountant or accounting firm. In
addition, the independent certified public accountant or accounting
firm shall submit a certified statement that the grantee’s total
gross revenues as herein defined were fairly stated and that the franchise
fees were calculated in accordance with this article. In the event
that additional franchise fees are due to the city, the grantee will
submit a check for payment of these fees on or before the date the
audited financial statements are due to be submitted to the city’s
director of finance upon request by city.
(c)
The
city shall have the right, consistent with the provisions herein,
to inspect a grantee’s books and records, the right of audit
and the recomputation of any amounts determined to be payable under
this article; provided that such audit shall take place within thirty-six
(36) months following the close of each of the grantee’s fiscal
years. Any additional amount due the city as a result of the audit
shall be paid within thirty (30) days following written notice to
the grantee by the city, which notice shall include a copy of the
audit report. The cost of such audit shall be borne by the grantee
if it is properly determined that the grantee’s annual payment
to the city for the preceding year is increased thereby by more than
five (5) percent. In the event that the grantee disagrees with the
audit, after obtaining its own independent audit, the grantee may
appeal to the city council for a final determination.
(d)
In
the event that any franchise payment or computed amount is not made
on or before the applicable dates heretofore specified, interest shall
be charged from such due date at the annual rate of twelve (12) percent,
but not to exceed the maximum rate allowed by law.
(e)
In
the event the franchise is canceled prior to its expiration date and
the city invokes its right to purchase a grantee’s cable system,
the grantee shall file with the city, within sixty (60) days of the
date that ownership and control passes to the city or its assignee,
an audited financial statement clearly showing the gross revenues
received by the grantee and shall pay the franchise fee due at the
time such statement is filed.
(f)
No
acceptance of any payment shall be construed as a release or as an
accord and satisfaction of any claim the city may have for further
or additional sums payable under this article.
(g)
Nothing
contained in this article shall be construed to exempt the grantee
from any tax, business license tax, levy, or assessment which is now
or which may hereafter be authorized by law.
(h)
The
city reserves the right to increase both the franchise fee rate and
the revenues on which such fee is based so as to increase the franchise
payments in the event that the current federal limitations as to the
franchise fee rate and the revenues on which such fee may be levied
are eliminated or changed as a result of superseding regulations,
laws or court action. Any change in franchise fee rate or the revenues
on which such fee is based shall be accomplished by amendment to this
article and to any other ordinance provision(s) granting a franchise
hereunder, provided that such amendments shall be preceded by a public
hearing affording due process. In the event that the city is required
by law to accept a franchise fee less than five (5) percent, and it
would be illegal to collect a five-percent franchise fee, the franchise
fee shall be adjusted to comply with such law.
(i)
The
city reserves the right to require the grantee to collect any consumer
or other tax of general applicability or other fee of general applicability
that may be imposed on subscribers by the city.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-151)
Applicants shall file a schedule of initial rates for services
in the application for a franchise. Subscriber service rates must
satisfy all FCC, state and city laws, ordinances and regulations.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-152)
