For the purposes of this article, the following terms, phrases,
words, abbreviations and their derivations shall have the meanings
given herein:
Shall have the meaning given to that term by the Communications
Act of 1934, as amended.
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., transmission
or downloading of computer software, video games, or statistical packages
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, teletext, one-way transmission of
any computer software and one-way video text services such as news
services, stock market information, and on-line airline guides and
catalog services that do not allow customer purchases.
Any 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 the city, except
that such term shall not include:
A facility that serves fewer than twenty (20) subscribers;
A facility that serves only to transmit the television signals
of one or more television broadcast stations;
A facility that serves only subscribers in one (1) or more multiple-unit
dwellings under common ownership, control or management, unless such
facility or facilities use any public right-of-way;
A facility of a common carrier which is subject, in whole or
part, to the provisions of the Communications Act of 1934, 47 U.S.C.
section 521 et seq., as amended, except that such facility shall be
considered a cable system to the extent such facility is used in the
transmission of video programming directly to subscribers; or
Any facility of an electric utility used solely for operating
its electric utility systems.
An interface device which may be furnished to subscribers
in order that nonstandard television channels carried on a cable system
may be received on a conventional home television receiver or to prevent
interference from strong broadcast signals. The device may be used
on top of the TV, a television (TV) set (“set-top”), attached
to the back of the TV set, or installed at a remote location.
The governing body of the city.
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 performed 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.
That federal agency as presently constituted pursuant to
the Communications Act of 1934, as amended, or any successor agency.
The nonexclusive rights, whether an initial authorization
or a renewal thereof, to construct and operate a cable system along
the public ways in the city or within specified areas in the city.
It is not intended to include or supersede or otherwise affect any
license or permit required for the privilege of transacting and carrying
on a business within the city as may be required by other ordinances
and/or laws of the city.
A natural person, partnership, domestic and/or foreign corporation
or entity, association, joint venture or organization of any kind
granted a franchise by the city council under this article, and its
lawful successor, transferee or assignee.
The City of Dalworthington Gardens, Texas.
All revenues derived from cash sales, customer credit account
sales, or 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 non-cable 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 non-cable service fees,
pay television and pay-per-view fees, leased channel fees, connector
rentals or sales, studio rentals 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.
The balance remaining to stockholders, partners, or owners
after deducting from gross revenues all direct and indirect operating
expenses associated with the operation of a cable system, including
the franchise fee, interest, depreciation, amortization and federal,
state and local taxes, determined in accordance with generally accepted
accounting principles.
All services offered over a cable system that go beyond providing
generally available video programming or other programming are non-cable
services. Non-cable communications services include private line data
transmission or voice communications that compete with services provided
by telephone companies. In general, services providing subscribers
with the capacity to engage in transactions or to store, transform,
forward, manipulate, or otherwise process information or data would
not be cable services. Examples of non-cable services include, but
are not limited to, shop-at-home and bank-at-home services, electronic
mail, one-way and two-way transmission of non-video data and information
not offered to all subscribers, data processing, video conferencing,
and all voice communications.
The construction of the system in a given area has been completed
such that no major construction is required to provide regular subscriber
service upon request.
Means and shall extend and be applied to associations, firms,
partnerships and bodies political and corporate as well as to individuals.
The distribution to subscribers of signals over a cable system
on all channels except leased access channels, those services for
which a per-program or per-channel charge is made, two-way services
and those services intended for reception by equipment other than
a television broadcast receiver.
A cable system with production facilities, technical performance,
capacity, equipment, components and service equal to that which has
been developed and demonstrated to be more modern than generally accepted
and used in the cable television industry for comparable areas of
equivalent population.
Any person who contracts to purchase, orally or in writing,
the regular subscriber service and/or any one 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.
(2005 Code, sec. 13.5.01)
A nonexclusive franchise to construct, operate and maintain
a cable system within all or any portion of the city is required of
anyone desiring to provide cable television service in the city. A
franchise may be granted by the city council to any person, firm,
corporation, association, joint venture or organization, whether operating
under an existing franchise or not, who or which offers to furnish
and provide such cable system under and pursuant to the terms and
provisions of this article and a franchise agreement acceptable to
the council. Insofar as it is not inconsistent with or otherwise preempted
by federal or state regulations, a franchise shall also grant the
right and privilege to the grantee to provide non-cable communications
services. The city council shall retain all authority to regulate
non-cable communications services to the extent necessary to protect
the public health, safety and welfare and to ensure compliance with
all provisions of this article.
(2005 Code, sec. 13.5.02)
(a)
The
grantor shall have the immunity from damages afforded by the Communications
Act of 1934, as amended.
(b)
A
grantee, by accepting a franchise, shall acknowledge that it has not
been induced to accept the franchise by any promise, oral or written,
by or on behalf of the city or by any third person regarding any term
or condition of this article or the franchise not expressed therein.
A grantee shall pledge that no promise or inducement, oral or written,
has been made to any city employee or official regarding receipt of
a cable television franchise.
(c)
A
grantee shall further acknowledge by acceptance of a franchise that
it has carefully read the terms and conditions of this article and
the franchise and accepts the obligations imposed by the terms and
conditions herein, regardless of whether their obligations are contained
in the franchise.
(d)
Any
decision of the city council concerning the selection of one or more
grantees and the award of one or more franchises is final and all
applicants shall agree as a condition of application not to contest
the council’s decision in any court of law or before the Federal
Communications Commission.
(e)
A
grantee shall not apply for any waivers, exceptions or declaratory
rulings from the Federal Communications Commission or any other federal
or state regulatory agency without providing the city secretary with
copies of all filings.
(f)
Nothing
in this section or in section 635A of the Communications Act of 1934,
as amended, shall be construed as creating or authorizing liability
of any kind, under any law, for any action or failure to act relating
to cable service or the granting of a franchise by the city or any
official, member, employee or agent of such authority or entity.
(2005 Code, sec. 13.5.03)
The city reserves the right to issue a license, easement or
other permit to anyone other than a grantee to permit that person
to traverse any portion of a grantee’s franchise area within
the city in order to provide service outside the city. Such license
or easement, absent a grant of a franchise in accordance with this
article, shall not authorize or permit such person to provide cable
television service of any nature to any home or place of business
within the city or to render any service or connect any subscriber
within the city to a grantee’s cable system.
(2005 Code, sec. 13.5.04)
A grantee agrees, by the acceptance of a franchise granted pursuant
to this article, to accept the validity under present law of the terms
and conditions of the franchise agreement in its entirety, and that
it will not, at any time, proceed against the city in any claim or
proceeding under present law challenging any term or provision of
the franchise as unreasonable, arbitrary or void or contending that
the city did not have the authority to impose such term or condition;
provided, however, the grantee and the city each reserve the right
to challenge the interpretation, enforcement and exercise of the rights
and obligations set forth hereunder, and the conformity of the terms
hereof with state and federal law established after the date hereof.
(2005 Code, sec. 13.5.05)
A grantee shall not be excused from complying with any of the
terms and conditions of this article or a franchise by any failure
of the city, upon any one or more occasions, to insist upon the grantee’s
performance or to seek the grantee’s compliance with any one
or more of such terms or conditions.
(2005 Code, sec. 13.5.06)
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 streets
and public ways, and to adopt such reasonable regulations relating
to streets and public ways as the city and/or its departments shall
hereafter provide. A grantee may reserve such rights as are stated
in a franchise.
(3)
The
powers of the city may be exercised through amendment of this article
as well as through enactment of separate ordinances and regulations.
(2005 Code, sec. 13.5.07)
Equal opportunity in employment shall be afforded by a grantee
to all qualified persons and no person shall be discriminated against
in employment by such entity because of race, color, religion, national
origin, age, disability or sex. A grantee shall establish, maintain
and carry out a positive continuing program of specific practices
designed to assure equal opportunity to every aspect of cable system
employment policy and practice. Compliance with the Federal Communications
Commission’s equal employment opportunity regulations, including
EEO program requirements, recruiting, promotions, contracting with
minority and female entrepreneurs and reporting requirements, shall
be deemed compliance with this article.
(2005 Code, sec. 13.5.08)
Whenever this article or a franchise granted pursuant hereto
sets forth any time for any act to be performed by or on behalf of
a grantee, such time shall be deemed of the essence and the grantee’s
failure to perform within the time allotted, in all cases, shall be
sufficient grounds for the city to invoke liquidated damages, default
proceedings, or revocation of a franchise.
(2005 Code, sec. 13.5.09)
(a)
It
shall be unlawful for any person, firm or corporation to establish,
operate or carry on the business of distributing to any persons in
the city any television signals or radio signals by means of a cable
system unless a franchise therefor has first been obtained pursuant
to the provisions of this article, and unless such franchise is in
full force and effect.
(b)
It
shall be unlawful for any person, firm or corporation to construct,
install or maintain within any public street in the city, or within
any other public property of the city, 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 distributing any television signals or radio signals through 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.
(c)
It
shall be unlawful for any person to make any unauthorized connection,
whether physically, electrically, acoustically, inductively or otherwise,
with any part of a franchised cable system within the city for the
purpose of enabling such person or others to receive any television
signal, radio signal, picture, program or sound, without payment therefor
made to the owner of the cable system.
(d)
It
shall be unlawful for any person, firm or corporation, without the
consent of the owner, to willfully tamper with, remove or injure any
cables, wires or equipment used for distribution of television signals,
radio signals, pictures, programs or sound.
(e)
Any
person violating any subsection of this section shall be punished
by a fine or by imprisonment or by both fine and imprisonment in accordance
with federal, state or local law.
(2005 Code, sec. 13.5.10)
In the event a grantee questions the reasonableness of any order,
requirement, decision, or other action taken by the city or shall
be of the opinion that the city lacks authority to take such action,
a grantee shall be allowed to appeal the order, requirement, decision
or other action to the council. The notice of objection and request
for an appeal shall be made in writing to the city secretary within
two weeks of the objectionable order, requirement, decision or other
action.
(2005 Code, sec. 13.5.56)
(a)
Every
direction, notice or order to be served upon a grantee shall be delivered
or sent by registered mail to its office in the city. Every notice
served upon the city shall be delivered or sent by certified or registered
mail, postage paid, to the City Secretary, City Hall, 2600 Roosevelt
Drive, Arlington, TX 76016.
(b)
All
provisions of this article shall apply to a grantee, its successors
and assigns, as such may be approved by the council in accordance
with this article.
(c)
The
rights granted by this article are subject to all franchises and permits
heretofore or hereafter granted by the council to use the streets
of the city by other public utility or public service corporations.
It is not intended by the grant of a franchise to abridge the exercise
of the police power heretofore or hereafter granted to the city by
the state legislature. The grant of a franchise is subject to all
ordinances and resolutions of the council as the same now exist or
may be hereafter amended, revised or codified, in the lawful exercise
of any other power granted to the city by the state legislature.
(d)
Specific
mention of the materiality of any of the provisions herein is not
intended to be exclusive of any others for the purpose of determining
whether any failure of compliance hereunder is material and substantial.
(e)
The
grantee, upon its acceptance of a franchise, shall be bound by the
provisions of this article, all responses, statements, and information
contained in its proposal, and all matters agreed upon in a franchise
agreement.
(f)
A
grantee shall assume the cost of any publications required by law
and such is payable upon a grantee’s filing of acceptance of
a franchise.
(2005 Code, sec. 13.5.57)
