[HISTORY: Adopted by the Town of Casco 1-18-2022 by Art. 4.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 28,
Cable Television, adopted by the Selectboard of the Town of Casco
1999, as amended.
The Town Meeting for the Town of Casco, Maine, finds and declares
that:
A.
The Town encourages competition in the provision of cable services
to the Town's residents and businesses and all cable franchise
agreements entered into by the Town shall be nonexclusive;
B.
It is in the public interest to permit the use of rights-of-way and
easements for the construction, maintenance, and operation of cable
systems under the terms of this chapter and a franchise adopted by
the Town;
C.
It is in the public interest to ensure that providers of cable service
do not discriminate as to the persons who have access to their service
because of race, color, sex, sexual orientation, religion, national
origin, age, handicap, income or the geographical area of the Town
in which they live;
D.
In order to meet community needs, cable service must be available
throughout the Town, including extension of existing cable systems
to underserved and unserved areas of the Town, providing access to
public, educational, and governmental access channels throughout the
Town, and providing cable service to schools and government buildings;
E.
Requiring providers to obtain a franchise prior to constructing a
cable system and/or providing cable service, while requiring the Town
to act expeditiously on any franchise request, allows the Town to
ensure that it can properly manage and control use of the public ways
and ensure that the public interest is served while also ensuring
the prompt provision of cable service; and
F.
It is the Town's intent to apply the ordinances of the Town,
including this chapter, to all persons seeking to offer cable service
in the Town and to use the public ways to construct, maintain, and
operate a cable system or an open video system within the boundaries
of the Town. All persons shall be required to apply for and receive
a franchise from, or open video system agreement with, the Town before
offering cable service in the Town.
The Town intends, by the adoption of this chapter, to facilitate
the development and operation of cable systems and open video systems
in the Town. This type of development can contribute significantly
to meeting the needs and desires of many individuals, associations
and institutions. The following are statements of the Town's
intent when granting or renewing a cable franchise or entering into
an open video system agreement:
A.
To provide for the installation and operation of cable systems offering
cable services with features meeting the current and future cable-related
needs and interests of the community considering the costs to subscribers
and to any cable operator;
B.
To act expeditiously on any requests for a franchise or open video
system agreement so as to allow the prompt provision of cable services
while ensuring that the public interest is met and that residents
are not discriminated against based on race, color, sex, sexual orientation,
religion, national origin, age, handicap, income or the geographical
area of the Town in which they live;
C.
Encourage the widest feasible scope and diversity of programming
and other cable services to all Town residents that are consistent
with community needs and interests, taking into account the cost of
providing the programming and cable services;
D.
Provide for universally accessible cable services that are available
to all Town residents, taking into consideration a cable operator's
costs;
E.
Encourage prompt implementation of technical advances in communications
technology;
F.
Provide for ample and fairly allocated access to cable and video
systems for producers of public, educational and governmental public
service programming to meet the needs and interests of the community,
taking into account the cost of providing such access; and
G.
Ensure that rates and charges for basic cable programming and equipment
are fair, reasonable, and consistent with federal standards.
For purposes of this Cable Ordinance, the following terms, phrases,
words, abbreviations, and their derivations shall have the meanings
provided herein. When not inconsistent with context, words used in
the present tense include the future tense; words in the plural number
include the singular number; words in the singular number include
the plural; and the masculine gender includes the feminine gender.
Unless otherwise expressly stated, words not defined herein or in
other local law shall be given the meaning set forth in applicable
law and, if not defined therein, the words shall be given their common
and ordinary meaning. The word "shall" is always mandatory and not
merely directory. The word "may" is directory and discretionary and
not mandatory.
Public, educational and/or governmental access channel(s).
Shall have the meaning ascribed in the Cable Act.
Any law, statute, charter, ordinance, rule, regulation, code,
license, certificate, franchise, permit, writ, ruling, award, executive
order, directive, requirement, injunction (whether temporary, preliminary,
or permanent), judgment, decree, or other order issued, executed,
entered, or deemed applicable by a governmental authority of competent
jurisdiction.
The Cable Communications Policy Act of 1984, as it may be
amended.[1]
Have the meaning ascribed in the Cable Act.
This chapter, as it may be amended.
Shall have the meaning ascribed in the Cable Act.
Shall have the meanings ascribed in the Cable Act.
The Federal Communications Commission.
Shall have the meaning ascribed in the Cable Act and may
from time to time refer collectively to a franchise and a franchise
agreement.
Any written contract entered into between a cable operator
and the Town that sets forth the terms and conditions of the authorization
provided by a franchise for the construction and/or operation of a
cable system.
The area of the Town identified in a franchise in which a
cable operator is authorized to construct, maintain and operate a
cable system or open video system.
Shall have the meaning ascribed in the Cable Act.
Shall be broadly construed to include any and all revenue derived
by a cable operator and its affiliates from the provision of cable
service within the Town, including, without limitation:
Monthly fees for cable services, regardless of whether such
cable services are provided to residential or commercial customers;
Installation, reconnection, downgrade, upgrade, or similar charges
or fees associated with changes in a subscriber's cable service
levels;
Fees paid to the Town for channels designated for commercial
or leased access use;
Fees or charges associated with a subscriber's use, rental,
lease, or purchase of a converter, remote control, lockout device,
or any other cable service equipment;
Advertising fees, rebates, and commissions, but excluding unaffiliated
agency fees;
Late fees, convenience fees, and administrative fees;
Revenues from program guides;
Franchise fees; and
Commissions from home shopping channels and other revenue sharing
arrangements.
Revenues derived from sales of advertising that run on the cable
system shall be allocated on a pro rata basis using total cable service
subscribers reached by the advertising. Gross revenues shall not include:
Actual bad debt write-offs; provided, however, that all or part
of any such actual bad debt that is written off but subsequently collected
shall be included in gross revenues in the period collected; and
Consistent with applicable law, any taxes on services furnished
by a cable operator imposed by any municipality, state or other governmental
unit, provided that franchise fees shall not be regarded as such a
tax.
Bundled services revenue. To the extent revenues are received
by a cable operator for the provision of a bundle of services that
includes cable services and non-cable services, the cable operator
shall calculate revenues to be included in gross revenues, including
late fee revenue, using a methodology that allocates revenue on a
pro rata basis when comparing the bundled service price and its components
to the sum of the most recent published rate card rate for the components,
except it is expressly understood that equipment may be subject to
inclusion in the bundled price at full rate card value. This calculation
shall be applied to every bundled service package containing cable
service from which a cable operator receives or derives revenues from
the Town's residents and must be updated within 60 days of the
date any rate change for cable and/or non-cable services is implemented
for a service package containing cable service or the date any rate
change is implemented for any service included in a service package
that contains cable service. The Town reserves its right to review
and to challenge a cable operator's calculations.
Shall have the meaning ascribed in the Cable Act.
The surface of, and the space above and below, any public
street, highway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other public right-of-way,
including, but not limited to, public utility easements, dedicated
utility strips, or rights-of-way dedicated for compatible uses and
any temporary or permanent fixtures or improvements located thereon
now or hereafter held by the Town in the Town which shall entitle
the company to the use thereof for the purpose of installing, operating,
repairing, and maintaining the cable system. "Public way" or "street"
shall also mean any easement now or hereafter held by the Town within
the Town for the purpose of public travel, or for utility or public
service use dedicated for public travel, or for utility or public
service use dedicated for compatible uses, and shall include other
easements or rights-of-way as shall within their proper use and meaning
entitle the company to the use thereof for the purposes of installing
or transmitting the company's cable service or other service
over poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be
ordinarily necessary and pertinent to the cable system. Reference
herein to "public way" or "street" shall not be construed to be a
representation or guarantee by the Town that its property rights are
sufficient to permit its use for any purpose, or that the Town shall
gain or be permitted to exercise any rights to use property in the
Town greater than those already possessed by the Town.
Any and all applicable laws promulgated by the Town addressing
the use of its public ways, including, without limitation, the construction,
maintenance, operation, restoration, and/or relocation of facilities
in the public ways.
Any person that lawfully receives cable service via a cable
system with a cable operator's express permission. In the case
of multiple office buildings or multiple dwelling units, the term
"subscriber" shall mean the lessee, tenant, or occupant.
The Town of Casco.
Shall have the meaning ascribed in the Cable Act.
[1]
Editor's Note: See 47 U.S.C. § 521 et seq.
A.
Title. This chapter shall be known and cited as the "Cable Ordinance"
or herein "this chapter."
B.
Incorporation of ordinance into any franchise. The requirements of
this chapter shall apply to the full extent of the terms herein and
shall be limited in scope or application only to the extent as may
be required by applicable law, including those changes in applicable
law as may be hereinafter enacted. The provisions of this chapter
shall be deemed incorporated in each franchise granted and franchise
agreement entered into. The failure of the Town to enforce any provision
of this Cable Ordinance or of any franchise or franchise agreement,
or the failure of any person to comply with any such provision, term
or condition, shall not be a waiver of the Town's right to enforce
the provision, term or condition.
C.
Rights and duties. Any rights granted pursuant to this chapter and
pursuant to any franchise authorized hereunder are subject to the
authority of the Town to adopt and enforce ordinances necessary for
the health, safety and welfare of the public. Cable operators shall
be subject to and comply with all valid generally applicable ordinances
enacted by the Town.
D.
Open Records Law. Information required to be filed with the Town
pursuant to this chapter that is subject to inspection and copying
by the public pursuant to the Freedom of Access Act, 1 M.R.S.A. §§ 400
et seq., shall be made available to the public in accordance with
the Act.
E.
Enforcement rights of the Town. The Town shall be entitled to enforce
the provisions of this chapter and any franchise through all remedies
lawfully available.
F.
Franchise required.
(1)
No person may construct, operate, or maintain a cable system using
the Town's public ways, or provide cable service within the Town's
municipal boundaries, without first receiving a franchise therefor
in accordance with this Cable Ordinance. Such franchise shall authorize
only a cable operator's construction, operation, and maintenance
of a cable system to provide cable service and shall not authorize
the construction, operation, or maintenance of any communications
facilities other than a cable system or the provision of any communications
service other than cable service. The franchise shall be nonexclusive.
(2)
The obligations of a franchise shall apply to any and all successors
and assigns of the cable operator, unless the Town expressly and in
writing agrees to release the successors and assigns from the franchise
or any portion thereof.
G.
Franchise agreement.
(1)
The Town may contract on such terms, conditions, and fees as are
in the best interest of the Town and its residents with one or more
cable operators for the construction, operation, and maintenance of
a cable system within the Town's municipal boundaries, including,
without limitation, the granting of a nonexclusive franchise agreement.
The term of any franchise agreement shall not exceed 15 years. Every
franchise agreement shall be nonexclusive. Any provision granting
an automatic renewal or other provision for extending a franchise
agreement is prohibited and such a provision shall be deemed null
and void.
(2)
All franchises granted by the Town shall comply with the requirements
of the Cable Ordinance. A franchise may contain additional terms and
conditions as the Town and a cable operator deem appropriate, provided
the additional terms and conditions are consistent with applicable
law. [Note: 30-A M.R.S.A. § 3008(5)(E)]
H.
Reservation of authority. All rights and privileges granted by a
franchise shall be subject to the Town's police power to adopt
and enforce local laws, ordinances, rules, and regulations necessary
to protect the public's health, safety, and general welfare.
Any conflict between the terms of a franchise and any present or future
lawful exercise of the Town's police powers, including, without
limitation, any conflict between a franchise agreement and this Cable
Ordinance, shall be resolved in favor of the Town's lawful exercise
of its police powers.
I.
Compliance with applicable law. Cable operators shall at all times
comply with applicable law. In the event a federal or state law, regulation,
or decision by a court of competent jurisdiction renders a provision
of a franchise void or otherwise unenforceable, the provision shall
be considered preempted. This preemption will last for as long as
the law, regulation, or decision is effective. If the law, regulation,
or decision is subsequently repealed, rescinded, amended, voided,
overturned or otherwise changed so that the preemption is nullified,
the provision shall thereupon return to full force and effect as provided
by such proceeding and shall be binding and enforceable in accordance
with the terms thereof.
J.
Construction standards. Every cable operator shall obtain all permits
and licenses required by the Town to construct a cable system in the
public ways. A franchise or franchise agreement does not relieve a
cable operator from obtaining all such necessary permits and paying
all necessary permit and license fees. A cable operator shall comply
with all applicable law in constructing its cable system.
K.
Franchise application process.
(1)
Initial franchise application.
(a)
An application for an initial franchise may, consistent with
applicable law, be submitted to the Town at any time and shall contain
the following information:
[1]
The applicant's name;
[2]
The names of the applicant's officers and directors;
[3]
The business address of the applicant;
[4]
The name and contact information of a designated contact for
the applicant;
[5]
A description of the geographic area that the applicant proposes
to serve;
[6]
The PEG channel capacity and capital support proposed by the
applicant;
[7]
Whether the applicant holds any existing authorization to access
the Town's public ways in the subject franchise service area;
[8]
The amount of the franchise fee the applicant offers to pay; [NOTE: Subsection K(1)(a)[1] through [8], 47 CFR 76.41]
[9]
The names and business addresses of any person having, controlling,
or being entitled to have or control at least 15.00% of the ownership
of the applicant;
[10]
The names and business addresses of any affiliate of the applicant;
[11]
A detailed description of all previous experience of the applicant
in constructing, operating, and maintaining a cable system and providing
cable service;
[12]
A statement identifying any other franchises awarded to the
applicant or its parent, affiliates, or subsidiaries in the State
of Maine and the status of such franchises;
[13]
A detailed description of the design of the proposed cable system,
including, without limitation, a detailed description of proposed
equipment and technologies to be used in constructing and operating
the cable system, channel capacity, channel uses, access programming
facilities, subscriber privacy, and interconnection;
[14]
A statement or schedule of the applicant's rates and charges
it proposes to be made available to potential subscribers; and
[15]
Any additional information required by applicable state or local
laws; and
[16]
Such other information as is required by the Town and is related
to the Town's evaluation of the application.
(b)
An application submitted to the Town but deficient with respect to any of the above requirements shall be deemed incomplete and shall not be deemed to have been received by the Town until such time as the information identified above in Subsection K(1)(a)[1] through [16] has been received by the Town and deemed to comply with this Subsection K(1).
(c)
All applications and related documents submitted to the Town
shall be public records open to inspection by the public during reasonable
hours. [Note: 30-A M.R.S.A. § 3008(4)(B)]
(2)
Renewal of cable franchise. Renewal of any existing Cable franchise
shall be conducted in accordance with 47 U.S.C. § 546, 30-A
M.R.S.A. § 3010, and this subsection.
(a)
A cable operator shall maintain adequate personnel and resources
to respond to the Town's requests for information related to
renewal in a timely manner. Failure to respond in a timely manner
is a violation of the Maine Unfair Trade Practices Act.
(b)
If an automatic renewal provision exists in a franchise having
an effective date on or before June 15, 2020, the automatic renewal
provision remains in effect until that franchise expires. The cable
operator shall notify the franchising authority of the automatic renewal
no later than 36 months in advance of the expiration of the franchise.
[Note: 30-A M.R.S.A. § 3010(5-C) states that "If an automatic
renewal provision exists in a franchise on the effective date of this
subsection, the automatic renewal provision remains in effect until
that franchise agreement expires." The effective date of that subsection
is 90 days after adjournment of Maine's 129th Legislature. Maine's
129th Legislature adjourned on March 17, 2020, 90 days after which
is June 15, 2020.]
(c)
The Town may require maps, diagrams, annual reports and franchise
fee statements together with such other information as the Town deems
necessary at renewal, which the cable operator shall make available
upon reasonable notice. If information is proprietary, the Town may
execute a nondisclosure agreement with the cable system operator.
[NOTE: 30-A M.R.S.A. § 3010(5-C)]
(3)
Public hearing.
(a)
No franchise, whether initial or renewal, may be granted without
notice to the public and approval of the franchise at a public hearing
conducted by the Town. Such a public hearing may be conducted on at
least seven days' advertised notice and shall provide a reasonable
opportunity for public input on a proposed franchise. [Note: 30-A
M.R.S.A. § 3008(4)(A) and (C)]
(b)
At any public hearing conducted under this section Subsection K(3) the Town shall, in accordance with applicable law, review the applicant's legal, financial, and technical qualifications, the proposed franchise's ability to meet the Town's current and future cable-related needs and interests, and the adequacy of the applicant's qualifications to construct and/or operate a cable system.
(4)
Application fee. The Town shall assess an applicant reasonable fees
to defray the costs incurred by the Town in acting upon the applicant's
application. [Note: 30-A M.R.S.A. § 3008(4)(D)]
L.
Additional franchises. The Town may not grant a franchise that is
materially more favorable or less burdensome than an existing franchise
granted pursuant to this Cable Ordinance, applicable state law, and
the Cable Act. This section shall apply only where the new franchise
provides authority to construct, operate and maintain a cable system
as well as authority to provide cable service.
M.
Non-cable services. To the extent permitted by law, the Town shall
retain the authority to regulate and receive compensation for the
provision of non-cable services over any part of the cable system.
If a cable operator is permitted by law and chooses to provide non-cable
services over any part of the cable system, the cable operator and
the Town shall negotiate the terms and fees therefor in accordance
with applicable law.
A.
Technical standards. All cable systems shall be constructed and maintained
in accordance with operating and technical standards established by
the FCC.
B.
Performance testing. Cable operators shall perform all tests necessary
to demonstrate compliance with the requirements of their franchise
agreement and other performance standards established by applicable
law.
C.
Inspection; special testing.
(1)
The Town shall have the right to inspect all construction and installation
work performed by a cable operator. In addition, the Town may require
special testing of a location or locations within a cable system if
there is a particular matter of controversy or unresolved complaints
regarding the cable system's construction, operations, or installation
work pertaining to such location or locations, and the cable operator
has not corrected such issues within 30 days of written notice from
the Town of the issues and applicable location or locations. Such
tests shall be limited to the location or locations in question.
(2)
A cable operator shall provide the Town with at least two business days' prior written notice of any special tests being conducted pursuant to this Subsection C and provide the Town an opportunity to observe such tests. All special testing results shall be submitted to the Town within 14 days of a special test's completion. If any test indicates that any part of component of a cable system fails to meet applicable requirements, the cable operator shall take corrective action, retest the location or locations, and advise the Town of the action taken and the subsequent results achieved.
D.
Emergency alert system. All cable systems shall incorporate emergency
audio override capabilities in accordance with the FCC's Emergency
Alert System (EAS) standards.
A.
Insurance.
(1)
All cable operators shall maintain during the full term of a franchise
such insurance as will protect it and the Town from any claims that
may arise directly or indirectly or result from a cable operator's
ownership, construction, repair, operation, or maintenance of the
cable operator's cable system serving the Town, whether such
activities are performed by the cable operator or any of its affiliates,
agents, subcontractors, or other associated persons. The insurance
policies required under this section shall not be in an amount less
than:
(2)
Insurance policies required under this section shall name the Town
as an additional insured and shall contain a statement on a policy's
face that the insurer will not cancel the policy or fail to renew
the policy, whether at the cable operator's request, for nonpayment
of premium, or otherwise, except after 60 days' advance written
notice has been provided to the Town. During the term of a franchise,
the cable operator shall not cancel any insurance policy required
under this section without prior submission of proof that the cable
operator has obtained alternative insurance that complies with this
Cable Ordinance and is satisfactory to the Town.
B.
Indemnification. A cable operator shall indemnify and hold harmless
the Town and its officers, boards, committees, commissions, elected
and appointed officials, employees, volunteers, and agents (collectively
the "Town's personnel") from and against any and all liability,
damages, and penalties which they may be legally required to pay as
a result of the Town's enforcement of the cable operator's
franchise except that a cable operator shall not be required to indemnify
the Town or the Town's personnel for negligence or misconduct
committed by the Town or the Town's personnel, respectively.
A.
Records and reports.
(1)
Upon reasonable written notice to a cable operator, the Town shall
have the right to inspect a cable operator's books and records
during normal business hours and on a nondisruptive basis, as are
reasonably necessary to ensure compliance with the material terms
of a franchise, including any federal, state, laws or regulations,
or generally applicable ordinances referenced herein. Records should
be produced within five business days of receipt of written request,
unless the cable operator responds that a longer amount of time will
be needed for good cause. Such written notice from the Town shall
specifically reference the section or subsection of the franchise
or Cable Ordinance which is under review, so that the cable operator
may organize the necessary books and records for appropriate access
by the Town.
(2)
A cable operator shall not be required to maintain any books and records for franchise or Cable Ordinance compliance purposes longer than the applicable statute of limitations. Notwithstanding anything to the contrary set forth herein, but subject to applicable law, a cable operator shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature, nor disclose any of its books and records not relating to the provision of cable service in the Town. Subject to § 28-4D (Open Records Law) and applicable law, the Town shall treat any information disclosed by a cable operator as confidential and shall only disclose it to employees or agents bound by a confidentiality and nondisclosure agreement reasonably acceptable to the cable operator, or as may be necessary to enforce the provisions hereof.
(3)
A cable operator shall not be required to provide subscriber information
in violation of 47 U.S.C. § 551.
(4)
A cable operator shall at all times after the effective date maintain
and provide to the Town upon written request:
(a)
Records of all written complaints for a period of two years after receipt by the cable operator. The term "complaint" as used in this § 28-7A refers to complaints about any aspect of the cable operator's service operations. Complaints recorded will not be limited to complaints requiring an employee service call.;
(b)
Records of area outages for a period of two years after occurrence,
indicating date, duration, and the number of subscribers affected,
type of area outage, and cause;
(c)
Records of service calls for repair and maintenance for a period
of two years after resolution by the cable operator, indicating the
date and time service was required, the date of acknowledgment and
date and time service was scheduled (if it was scheduled), and the
date and time service was provided, and (if different) the date and
time the problem was resolved;
(d)
Records of installation and reconnection requests, and requests
for service extension for a period of two years after the request
was received by the cable operator, indicating the date of request,
date of acknowledgment, and the date and time service was extended;
and a map showing the area of coverage for the provisioning of cable
services. [Note: In the Model Franchise Agreement, this word is "fulfilled,"
but it has been changed to "received" here]
(5)
The Town reserves its right to copy books and records as allowed
under FCC regulation. [Note: Entire para from Model Franchise Agreement
§ 14.]
B.
Annual report.
(1)
No later than April 1 of each year during the term of a franchise,
the cable operator shall submit an annual report to the Town for the
prior calendar year, which report shall include at a minimum:
(a)
Total number of subscribers;
(b)
The increase or decrease in the number of subscribers over the
prior calendar year for the Town;
(c)
Total miles of new cable plant installed, including, without
limitation, a specific description of any line extensions in the Town
in the prior calendar year;
(d)
Total number of service calls indicating number of dispatches
and number repaired;
(e)
Listing of all charges and fees for cable or cable-related services
and any price or programming changes in the prior year;
(f)
A description of any technological upgrades or enhancements
in cable service over the past year;
(g)
All area outages, including date and duration;
(h)
The total revenues upon which a franchise fee is paid (broken
down by major category);
(i)
The total franchise fee for the year;
(j)
Equipment or equivalent funding provided to the PEG access channels
(if any);
(k)
Other information the cable operator chooses to include.
(2)
After delivery of the Annual Report, the cable operator shall, at
the request of the Town, attend a meeting with the Town to review
and discuss any issues or questions raised in the Town's review
of the annual report.
C.
Supplemental reporting. Upon written request of the Town, a cable
operator shall provide, not more than annually, a report listing the
following:
(1)
A summary of the cable operator's most recent FCC proof of performance
tests and measurement records interpreted in laymen's language
describing the cable system's compliance or lack of compliance
with the FCC Technical Standards set forth in 47 CFR 76.601 et seq.
as the same may be modified in the future, identifying any instances
of noncompliance and describing all measures taken or under way to
achieve compliance;
(2)
A list of any material violations by the cable operator of the technical
rules of the FCC, including but not limited to violations of rules
and regulations regarding signal quality and safety during the past
12 months, and describing all measures taken or underway to achieve
compliance; and
(3)
A copy of the cable operator's most recent Securities and Exchange
Commission Forms 10-K and 10-Q.
D.
Franchise fees.
(1)
Franchise fee payments to the Town shall be made in accordance with
the following requirements:
(a)
Every cable operator shall pay to the Town the same franchise fee, which shall be established by the Town by resolution or regulation, in an amount of up to 5% [Note: Town can choose any amount from 0% to 5% and later revise the amount under Subsection D(1)(b) immediately below] of its annual gross revenue, or such other amount as may be allowed by applicable law;
(b)
This franchise fee may be reviewed every two years by the Town.
In the event the franchise fee is increased or decreased, the Town
shall give the cable operator a ninety-day notice to implement the
new fee. In accordance with the Cable Act, the twelve-month period
applicable under the franchise for the computation of the franchise
fee shall be a calendar year;
(c)
The franchise fee and any payments in support of the Town's
access channels shall be due monthly and payable within 30 days after
the close of the preceding month. Each payment shall be accompanied
by a brief report prepared by a representative of a cable operator
showing the basis for the computation, in a form required by the Town,
and which may be modified upon mutual consent by a cable operator
and the Town; provided, however, each cable operator shall be required
to provide the same information regardless of the form required by
the Town. Payments shall be deposited to a Town account electronically;
(d)
The period of limitation for recovery of any franchise fee payable
hereunder shall be the applicable statute of limitations from the
date on which payment by a cable operator is due;
(e)
All amounts due and owing under this chapter and a franchise
and not paid by the dates specified herein shall bear interest at
the prime rate listed in the Wall Street Journal on the date payment
was due and compounded daily and calculated daily from the date due
until the date of actual payment; and
(f)
The franchise fee obligation herein is a material requirement
of a franchise and is considered payment by a cable operator for use
of rights-of-way.
(2)
Late payments. In the event a cable operator fails to remit any payment
due to the Town on or before a date fixed in the cable operator's
franchise, interest due on such payment shall accrue from the date
due at 1.50% per month.
(3)
Acceptance of payment. Acceptance of payments by the Town shall not
be construed as accord that an amount paid is the correct amount.
The Town reserves its rights to inspect relevant books and records
and seek any underpayments due.
E.
Fee auditing.
(1)
Charges for audits or tests.
(a)
If an inspection or audit of a cable operator's books and
records shows that the cable operator underpaid by 4% or more for
any payment period, the cable operator shall reimburse the Town for
all reasonable costs, including, without limitation, expert fees arising
from the inspection or audit, and any additional inspection or audit
until it is determined that the cable operator is in full compliance.
(b)
If it is determined that a cable operator has not materially
complied with FCC standards, the Town shall, to the extent permitted
by federal law, have the right to charge all costs arising from these
tests, including, without limitation, expert fees, to the cable operator
until it is determined that the cable operator is in full compliance.
Notwithstanding the foregoing, the obligation to pay the Town's
costs for tests of the performance of a cable system shall only arise
if the Town's test is 1) a test of an area where the cable operator
has represented that it has corrected a problem, and the problem was
not in fact corrected; 2) a second test of an area by the Town, where
the cable operator had been notified of the problem and been given
an opportunity to cure it; or 3) where the cable operator challenged
the validity of a Town test, and the Town agrees to retest, and the
re-test confirms the validity of the initial Town test. These charges
are incidental to the enforcement of the franchise, and they do not
limit any right the Town may have to exercise any other remedy.
F.
Rate regulation. The Town reserves the right to regulate the rates
of every cable operator to the extent permitted by applicable law.
G.
Performance bond.
(1)
Concurrent with the award of any franchise, the cable operator shall file with the Town Clerk and shall thereafter annually during the entire term of such franchise maintain in full force and effect at its own cost and expense a performance bond in the amount of at least [INSERT BOND AMOUNT] to guarantee the faithful performance by the cable operator of all of its obligations under its franchise. The performance bond shall be so conditioned that in the event that the cable operator shall breach any one or more material provisions of the franchise or this Cable Ordinance and subsequent to any notice and opportunity to cure provision of the franchise or this Cable Ordinance, the Town may recover from the surety any penalties assessed in accordance with Subsection H below and any damages or costs suffered or incurred by the Town as a consequence of such breach. Said conditions shall be a continuing obligation during the entire term of the franchise.
(2)
A cable operator shall provide at least 30 days' prior written
notice of the cable operator's or the surety's intent to
cancel, materially change, or not to renew the performance bond or
security fund.
(3)
In the event that the Town recovers against any portion of the performance
bond, the cable operator shall be required to replenish the original
bond in an amount equal to the amount recovered by the Town within
30 days. Failure to post an additional bond on a timely basis shall
constitute a violation of a material provision of this Cable Ordinance.
[Note: CTAM Model Ordinance § 6.1]
H.
Franchise compliance.
(1)
Amount. For failure to comply with a franchise or this Cable Ordinance,
a cable operator shall be subject to a penalty of [INSERT AMOUNT]
per day per violation.
(2)
Date of violation; notice. The initial date of a cable operator's
violation shall be the date the cable operator receives written notice
of the violation.
(3)
Procedure for penalties. Before the Town may assess any penalties
under this section:
(a)
The Town shall notify a cable operator in writing of the cable
operator's alleged failure or Violation, which notice shall specify
the alleged failure or violation with reasonable particularity;
(b)
The cable operator shall, within 30 days after receipt of the
notice or such longer period as the Town may specify in such notice,
either cure the alleged failure or violation or, in a written response
to the Town Manager, either present facts and arguments in refutation
or excuse of such alleged failure or violation or state that the alleged
failure or violation will be cured and set forth the method and time
schedule for accomplishing such cure.
(c)
Unless the Town Manager determines that the matter has been
resolved, the cable operator's response shall be submitted to
the Town Board to schedule a public hearing at which the Board shall
determine: i) whether a failure or violation has occurred; ii) whether
such failure or violation is excusable; iii) whether such failure
or violation has been or will be cured by the Town; and iv) the appropriate
remedy for the failure or violation.
(d)
The Town shall provide 30 days' written notice of the public
hearing to the cable operator. During the public hearing, the cable
operator shall have the right to appear and be heard, including the
opportunity to present evidence, question witnesses, if any, and the
hearing shall follow the procedures set forth for public hearings.
If the Town Board determines that such failure has not occurred or
that such failure either has been or will be cured in a manner and
in accordance with a reasonable schedule satisfactory to the Board,
or that the failure is excusable, such determination shall conclude
the matter unless the cable operator fails to comply with the schedule
for cure.
(4)
Non-enforcement not waiver. Neither the Town nor any cable operator
shall be excused from complying with any of the terms and conditions
thereof by any failure of either party upon one or more occasions
to insist upon or to seek compliance with any such terms or conditions.
No course of dealing between a cable operator and the Town, nor any
delay on the part of the Town or cable operator in exercising any
rights granted by a franchise or this Cable Ordinance, shall operate
as a waiver of any such rights thereof or acquiescence in the actions
of the company or Municipality in contravention of such right, except
to the extent expressly waived by either party or expressly provided
for in a franchise or this Cable Ordinance. No decision by the Town
or cable operator to invoke any remedy under a franchise or this Cable
Ordinance or under any statute, law or ordinance shall preclude the
availability of any other such remedy. This section does not extend
any applicable statute of limitations.
I.
Franchise termination or revocation.
(1)
Right to revoke or terminate. In addition to all other rights and
powers of the Town, the Town may revoke a franchise and all rights
and privileges of the cable operator in the event the cable operator:
(a)
Violates any material provision of the franchise or any rule,
order, or determination of the Town made pursuant thereto, where such
violation remains uncured for a period of at least 30 days following
written notice to the cable operator by the Town that such violation
is deemed to exist unless cure is not feasible in such time period
in which event the parties shall meet and agree to a cure schedule;
(b)
Attempts to evade any material provision of the franchise or
practices any fraud or deceit upon the Town; or
(c)
Arbitrarily ceases to provide cable service over the cable system
or fails to restore cable service after 96 consecutive hours of interrupted
service except in cases of force majeure or when approval of such
interruption is obtained from the Town.
(2)
Procedures to revoke or terminate. The Town shall follow the following
procedures in revoking a franchise:
(a)
The Town shall provide to the cable operator the Town's
notice of intent to revoke the franchise. The written notice shall
be sent by certified or overnight mail and shall describe in reasonable
detail the specific violations of the franchise alleged to have occurred.
(b)
The cable operator shall have 90 days from receipt of the Town's
notice to either correct the alleged violation or dispute the Town's
allegations. In the event that by nature of the alleged violations
such violation cannot be cured within such ninety-day period, the
parties shall meet and agree to a cure schedule.
(c)
If the cable operator disputes the Town's allegations,
the Town shall review the dispute and make its determination as to
whether a violation has occurred.
(d)
If the Town continues to maintain that a violation did occur,
the Town shall notify the cable operator in writing. The cable operator
shall then either remedy the violation within 90 days or notify the
Town in writing that the cable operator continues to dispute the allegations.
(3)
Public hearing. The Town may conduct a public hearing on the revocation.
The cable operator shall have the right to participate in such hearing,
present witnesses, and the Town shall issue a written determination
of its findings. Such public hearing must take place no less than
30 days prior to the decision to revoke.
(4)
Judicial review. A cable operator shall have the right to seek judicial
review of the Town's determination to revoke.
J.
Abandonment. If a cable operator ceases providing cable service in
the Town pursuant to 30-A M.R.S.A. § 3008(3)(B), the cable
operator shall remove all of its supporting structures, poles, transmission,
and distribution systems, and other appurtenances from the public
ways and shall restore the areas consistent with the public ways Ordinance.
If such removal is not completed within six months of such end of
service, the Town may deem any property not removed as having been
abandoned. Upon written request of the cable operator, the Town may
waive this requirement for good cause shown.
K.
Franchise expiration. Upon expiration and nonrenewal or revocation
of a franchise, and exhaustion of all judicial appeals thereof, the
franchise's corresponding cable system shall be disposed of according
to 47 U.S.C. § 546 and the franchise.
L.
Franchise amendment. A franchise shall not be amended or modified
except by written agreement executed in the same manner as the franchise.
Where applicable, the amendment shall be consistent with the provisions
of 47 U.S.C. § 545.
M.
Franchise transfers.
(1)
Cable operator's right to transfer. A franchise and corresponding
cable system may, collectively or concurrently, be sold, assigned
or otherwise transferred (a "franchise transfer") in accordance with
the procedure set forth in federal law and this Cable Ordinance.
(2)
Municipality's right to approve.
(a)
Pursuant to 47 U.S.C. § 537, the Town reserves its
right to approve or disapprove any franchise transfer. The Town's
approval shall not be unreasonably withheld.
(b)
A transfer or assignment of a franchise or control thereof between
commonly controlled entities, between affiliated companies, or between
parent and subsidiary corporation, shall not constitute a transfer
or assignment of a franchise or control thereof. An "affiliated company"
is any person that directly or indirectly of through one or more intermediaries
controls, is controlled by, or is under common control with another
person.
(3)
Notice to municipality. A cable operator shall provide to written
notice to the Town of a proposed franchise transfer ("franchise transfer
notice"). The contents of a franchise transfer notice shall include:
(4)
Time to review. The Town shall have 120 days from receipt of a franchise
transfer notice to take action on the proposed franchise transfer.
If the Town fails to act upon a franchise transfer notice within 120
days, the franchise transfer notice shall be deemed granted unless
the Town and requesting cable operator otherwise agree to an extension
of time. [Note: 47 CFR § 76.502(c)]
(5)
Public hearing. The Town may conduct a public hearing on a proposed
franchise transfer no later than 90 days after receipt of a franchise
transfer notice.
(6)
No waiver or release. The consent or approval of the Town to any
franchise transfer shall not constitute a waiver or release of the
rights of the Town in and shall, but its terms, be expressly subordinate
to the terms and conditions of a transferred franchise.
A.
Line extension. Every cable franchise renewed and/or granted after the effective date of this Cable Ordinance shall require every franchised cable operator, subject to Subsection D (Universal Buildout) below, to extend its cable system to areas of the franchise Area that have a population density of at least one to 15 households per linear strand mile of aerial cable, which the Town deems reasonable to meet the Town's needs in light of the costs to the franchised cable operator, and in the Town's best interests. [Note: Maine Law requires "A minimum density requirement of no more than 15 residences per linear strand mile of aerial cable for areas in which the cable system operator will make cable television service available to every residence." Each town must insert the density standard that meets the town's needs; See NCTA v. Frey (D. Maine 2020) (state line extension requirement upheld, but cable operators may challenge local provisions on a case-by-case basis); The Town is advised to engage an expert to determine the state line extension requirement is reasonable to meet the Town's needs in light of the cost to a cable operator.)]
B.
Standard installations. Standard installations will be performed
within seven business days after an order has been placed. Standard
installations are those that are located up to 125 feet from a cable
operator's existing cable system.
C.
Annexation. Areas subsequently annexed shall be provided with cable
availability and the Town's PEG Channels, if applicable, within
12 months of the annexation election certification or within six months
of the effective date of the annexation, whichever occurs first. Franchise
fees and PEG Support, if any, derived from the annexed area commencing
on the effective date of the annexation shall be paid to the Town
within 90 days of the effective date of the annexation.
D.
Universal buildout. Every franchised cable operator, including its
predecessor's in interest, shall be allowed a period of 50 years
from its initial grant of a cable franchise by the Town to construct
its cable system to become capable of providing cable service to all
households in the franchise Area, which the Town deems a reasonable
period of time. [NOTE: 47 U.S.C. § 541(a)(4)(A) states a
franchise authority "shall allow the applicant's cable system
a reasonable period of time to become capable of providing cable service
to all households in the franchise area." See NCTA v. Frey (D. Maine
2020); The Town is advised to engage an expert to determine a reasonable
time for universal buildout as the time may vary between franchising
authorities.]
E.
Public, educational, and governmental access channels. A cable operator
shall carry access channels on the cable operator's basic cable
or video service offerings or tiers. A cable operator may not separate
access channels numerically from other local broadcast channels carried
on the cable operator's basic cable or video service offerings
or tiers and, in the event of a franchise transfer, shall use the
same channel numbers for the access channels as used for those channels
by the incumbent cable system operator, unless prohibited by federal
law. After the initial designation of access channel numbers, a cable
operator may not change the channel numbers without the agreement
of the originator, unless the change is required by federal law.
(1)
Channel restoration.
(a)
Consistent with 30-A M.R.S.A. § 3010(5-A), a cable
operator shall restore a public, educational or governmental access
channel that was moved without the consent of the Town or its access
channel designee. [Note: 30-A M.R.S.A. § 3010(5-A)]
(b)
An access channel may not be relocated without the Town's
prior written consent, which may not be unreasonably withheld. If
an access channel is relocated, the cable operator shall reimburse
the Town or its access channel designee for costs associated with
changing logos, letterhead, business card, etc. to reflect a new channel
number.
(2)
Access channel transmission. A cable operator shall retransmit public,
educational and governmental access channel signals in the format
in which they are received from the Town or its access channel designee
and at the same signal quality as that provided to all subscribers
of the cable service for local broadcast channels. A cable operator
may not diminish, down convert or otherwise tamper with the signal
quality or format provided by the Town or its access channel designee.
A cable operator shall deliver a public, educational or governmental
access channel signal to the subscriber in a quality and format equivalent
to the quality and format of local broadcast channel signals carried
on the cable service if provided as such by the Town or its access
channel designee. A cable operator shall carry each public, educational
or governmental access channel in both a high definition format and
a standard digital format in the same manner as that in which local
broadcast channels are provided, unless prohibited by federal law.
(3)
Electronic programming guide integration. A cable operator, when
requested, shall assist in providing the Town or its access channel
designee with access to the entity that controls the cable service's
electronic program guide so that subscribers may view, select and
record public, educational and governmental access channels in the
same manner as that in which they view, select and record local broadcast
channels. In addition, a cable operator shall identify public, educational
and governmental access channels on the electronic program guide in
the same manner as that in which local broadcast channels are identified.
This subsection does not obligate a cable operator to list public,
educational and governmental access channel content on channel cards
and channel listings. If channels are selected by a viewer through
a menu system, the cable operator shall display the access channel
designations in a similar manner to that in which local broadcast
channel designations are displayed.
(4)
Access channel phone support. A cable operator shall make available to the Town or its access channel designee a toll-free telephone number with a direct line to a service technician who is familiar with the signal path and equipment associated with public, educational and governmental access channels on the cable system for resolution of a signal quality problem. [Note: Subsection E(2) through E(4), 30-A M.R.S.A. § 3010(5-B)]
(5)
PEG facilities and equipment support.
(a)
Pursuant to applicable law, a cable operator shall provide to
the Town or its access channel designee adequate access channel facilities
and equipment and equivalent financial support to meet the cable-related
needs and interests of the Town and its communities (the "PEG Support").
(b)
To meet the cable-related needs and interests of the Town, the
Town may require all cable operators to provide financial support
as permitted by the Cable Act, as a capital grant payable by each
cable operator to the Town for PEG capital requirements in the amount
up to 3% of a cable operator's gross revenue, as determined by
the Town no more frequently than once every two years. The capital
grant shall be payable by each cable operator with the franchise fee
payment as required by this chapter and may be itemized and passed
through to subscribers in the same manner. The Town shall require
the same percentage fee of all cable operators or shall not impose
the fee on any cable operator. The Town shall provide all cable operators
with 90 days' prior written notice for the implementation or
modification of the capital grant.
(6)
Access channel signal transport. With respect to any access channel
subject to 30-A MRSA § 3010(5), any and all equipment associated
with the interconnection of access channel transmission facilities
between a Town Hall or other designated location and a cable operator's
head end within the cable operator's cable system as well as
the formatting of PEG programming for transmission to a subscriber
are considered capital costs, and the costs and maintenance thereof
shall be borne by the cable operator.
(a)
Access channel return feeds.
[1]
Each cable operator shall install, maintain, and, as necessary to comply with Subsection E(2) above, upgrade an activated direct fiber optic return feed, and supply and maintain all necessary transmission equipment, from Town Hall (located at 627 Meadow Road, Casco Maine) or another location designated by the Town, to the cable operator's head end. This fiber optic feed shall be adequate to permit the simultaneous transport of all access channels provided by the cable operator to the Town at least at a broadcast quality standard. The Town may not designate a different location for a fiber optic return feed more than once every three years.
[2]
To the extent necessary to make access channel programming available
to all subscribers, all cable operators shall cooperate with one another,
including, without limitation, making available a cable operator's
fiber optic return feed for interconnection with another cable operator's
cable system.
[3]
Upgrades to or the initial installation of a fiber optic return
feed shall be completed within 60 days of commencement. In the event
of a cable system rebuild, upgrade, or installation, such fiber optic
return feeds shall be completed at the same time as the system rebuild.
(b)
Access channel live remote return feeds. A cable operator shall also provide and maintain equipment and facilities, including, without limitation, DOCSIS modems and cable drops, to permit live programming from remote sites, through an MPEG2 or MPEG4 transport system, or in some other manner that provides broadcast quality carriage of an access channel's signal from a remote site to the location designated under Subsection E(6)(a) above. New equipment and facilities will be made available within an agreed upon time frame.
F.
Broad categories of programs and services. Consistent with federal
law, a cable operator shall provide or enable the provision of at
least the following broad categories of programming to the extent
the categories are reasonably available on commercially reasonable
terms:
(1)
Local news, weather and information;
(2)
Educational programming;
(3)
Sports;
(4)
General entertainment (including movies);
(5)
Children/family-oriented;
(6)
Arts, culture and performing arts;
(7)
Food;
(8)
Foreign language based on population;
(9)
Science/documentary;
(10)
National, state and local government affairs;
(11)
Access programming, as provided by a franchise;
(12)
Program channel guide; and
(13)
National news, weather and information.
G.
Compliance with applicable customer service standards. Cable operators
shall at all times comply with all applicable customer service standards,
including, without limitation, 47 CFR 76.309 (Customer Service Obligations),
76.1602 (Customer Service - General Information), 76.1603 (Customer
Service - Rate and Service Changes) and 76.1619 (Information on subscriber
Bills); 30-A M.R.S.A. §§ 3008 (Ordinances Relating
to Cable Television Systems) and 3010 (Consumer Rights and Protection
Relating to Cable Television Service); and those customer service
standards identified in this Cable Ordinance.
H.
Rights of users. A cable operator may not deny cable service, deny
access or otherwise discriminate against subscribers, channel users
or general citizens on the basis of age, race, religion, sex, physical
handicap or country of natural origin. [Note: 30-A M.R.S.A. § 3010(6)]
I.
Late fees. A cable operator may not charge a late fee or other penalty
or charge for late payment of any bill that exceeds 1.50% per month
of the amount due in the bill. If the bill includes separate charges
for different levels of service, a late fee or other penalty or charge
must be calculated on the total amount overdue for all levels of service
and may not be calculated separately for each level of service. A
payment is not late under this subsection until at least 30 days after
those services to which the late fee applies have been received by
a subscriber. [Note: 30-A M.R.S.A. § 3010(6-B)]
J.
Subscriber complaints. Recording subscriber complaints must be as
follows:
(1)
Every cable operator shall keep a record or log of all written complaints
received regarding quality of service, equipment malfunctions, billing
procedure, employee attitude, and similar matters. These records must
be maintained for a period of two years.
(2)
The record must contain the following information for each complaint
received:
(a)
Date, time, and nature of the complaint;
(b)
Name, address, and telephone number of the person complaining;
(c)
Investigation of the complaint;
(d)
Manner and time of resolution of the complaint;
(e)
If the complaint regards equipment malfunction or the quality
of reception, a report indicating corrective steps taken, with the
nature of the problem stated; and
(f)
Consistent with subscriber privacy provision in the Cable Act,
every cable operator shall make the logs or records of complaints
available to any authorized agent of the Town upon request during
normal business hours for on-site review. [Note: 30-A M.R.S.A. § 3010(4)]
K.
Credits and refunds for interruption of service. Credits and refunds
for interruption of cable service shall be as follows:
(1)
In the event cable service to any subscriber is interrupted for six
or more consecutive hours in a thirty-day period, the cable operator
will, upon request, grant that subscriber a pro rata credit or rebate;
(2)
An office of a cable operator must be open during usual business
hours, have a listed toll-free telephone, and be capable of receiving
complaints, requests for adjustments, and service calls; and
(3)
Cable operators shall provide subscribers with 30 days' advance
written notice of any increase in rates, changes in billing practices,
or the deletion of a channel. [Note: 30-A M.R.S.A. § 3010(1)]
L.
Service disconnection. Cable operators must discontinue billing a
subscriber for a service within 10 working days after the subscriber
requests that service disconnection unless the subscriber unreasonably
hinders access by a cable operator to equipment of the cable operator
on the premises of the subscriber to which the cable operator must
have access to complete the requested disconnection. [Note: 30-A M.R.S.A.
§ 3010(1-A)]
M.
Subscriber communications.
(1)
Notices to subscribers regarding quality of service. Notice to subscribers
regarding quality of service must be as follows:
(a)
For each new subscriber, and annually thereafter, every cable
operator shall cause to be mailed to each of its subscribers a notice
that:
[1]
Informs subscribers of how to communicate their views and complaints
to the cable operator, the proper municipal official, and the Attorney
General;
[2]
States the responsibility of the Department of the Attorney
General to receive consumer complaints concerning matters other than
channel selection and rates;
[3]
States the policy regarding and method by which subscribers may request rebates or pro rata credits as described above in Subsection K; and
[4]
Informs subscribers of their right to request basic-tier, nonpremium
programming service and the cost of that service.
(b)
The notice must be in nontechnical language, understandable
by the general public, and in a convenient format. On or before January
30 of each year, each cable operator shall certify to the Town and
to the Department of the Attorney General that the cable operator
has distributed the notice during the previous calendar year as required
by this section. [Note: 30-A M.R.S.A. § 3010(2)]
(2)
Notice on subscriber bills; credits and refunds. All cable operators shall include on each subscriber bill for service a notice regarding the subscriber's right to a pro rata credit or rebate for interruption of service upon request in accordance with Subsection K above. The notice must include a toll-free telephone number and a telephone number accessible by a teletypewriter device or TTY for contacting the cable operator to request the pro rata credit or rebate for service interruption. The notice must be in nontechnical language, understandable by the general public and printed in a prominent location on the bill in boldface type. [Note: 30-A M.R.S.A. § 3010(2-A)]
N.
Privacy.
(1)
A cable operator may not intrude upon the privacy of a subscriber
by installing or using any equipment that allows the cable operator
to observe or to listen to what is occurring in an individual subscriber's
household or to monitor the viewing habits of the subscriber without
express prior written consent of the subscriber.
(2)
A cable operator may not sell, disclose or otherwise make available,
or permit the use of, lists of the names or addresses of its subscribers,
or any list or other information that identifies by name or address
subscribers or subscriber viewing habits, to any person or agency
for any purpose whatsoever without the prior written consent of the
subscriber except that the cable operator may make such lists available
to persons performing services for the cable operator in connection
with its business or operations, such as a billing service, when the
availability of such lists is necessary to the performance of such
services if, in either case, the persons or entity receiving such
lists agree in writing that they will not permit them to be made available
to any other party. [Note: 30-A M.R.S.A. § 3010(6-A)]
O.
Employee identification cards. All of a cable operator's employees
and subcontractors, including, without limitation, repair and sales
personnel, entering private property shall be required to display
an identification card issue or approved by the cable operator indicating
that the employee or subcontractor is working on behalf of the cable
operator. [Note: Model franchise agreement § 20(C)]
[Note: Section 28-8 is also generally based on NCTA V. Frey, (D. MAINE 2020)]
A.
Purpose. The purpose of this section is to establish regulations
for local exchange carriers providing cable service to subscribers
in their telephone service area through an open video system.
B.
Applicability. The provisions of this section shall apply to an open
video system operator certified by the Federal Communications Commission
that intends to deliver cable service to consumers in the Town over
an open video system as defined by 47 CFR § 1500(a).
C.
OVS application required.
(1)
Before commencing the delivery of cable services to consumers in
the Town over an open video system, the open video system operator
shall file an application with the Town.
(2)
That application shall include or be accompanied by the following,
as applicable:
(a)
The identity of the applicant, including all affiliates;
(b)
Copies of FCC Form 1275, all notices of intent filed under 47
CFR 76.1503(b)(1), and the order of the FCC, all of which relate to
certification of the applicant to operate an open video system in
the Town in accordance with Section 653(a)(1) of the Communications
Act and the FCC's rules;
(c)
A description of the cable services that will be offered over
existing or proposed facilities;
(d)
A description of the transmission medium that will be used to
deliver the cable services;
(e)
Information in sufficient detail to establish the applicant's
technical qualifications, experience and expertise regarding the ownership
and operation of the open video system described in the application;
(f)
Financial statements, which shall not be considered public records
pursuant to the Freedom of Access Act prepared in accordance with
generally accepted accounting principles that demonstrate the applicant's
financial ability to:
[1]
Construct, operate, maintain, and remove any new physical plant
that is proposed to be constructed in the Town;
[2]
Comply with the Town's public, educational, and governmental
access requirements as specified in this section; and
[3]
Comply with the Town's requirement that gross revenue fees
be paid as specified in this subchapter;
(g)
An accurate map showing the location of any of the applicant's
existing telecommunications facilities in the Town that the applicant
intends to use;
(h)
If the applicant's operation of the open video system will
require the construction of new physical plant and facilities in the
Town, the following additional information be provided:
(i)
Additional information as may be requested by the Town.
D.
Review of the application. Upon receipt of an application filed under
this subchapter, the Town shall give written notice to the applicant
of the Town's intent to negotiate an agreement setting forth
the terms and conditions under which the operation of the proposed
open video system will be authorized by the Town.
E.
Agreement required.
(1)
No cable service may be provided in the Town by an open video system
operator unless the operator and the Town have executed a written
agreement setting forth the terms and conditions under which the operation
of the proposed open video system will be authorized by the Town.
(2)
The agreement between the Town and the open video system operator
may contain terms and conditions that relate to the following subject
matters, to the extent that these terms, conditions and subject matters
are not preempted by federal law or regulations:
(a)
The nature, scope and duration of the agreement, including provisions
for its renewal or extension;
(b)
The obligation of the open video system operator to pay to the
Town, at specified times and in lieu of the franchise fees permitted
under Section 622 of the Communications Act, fees on the gross revenue
received by the operator, as authorized by 47 CFR 76.1511, in accordance
with the following standards and procedures:
[1]
The amount of the fees on the gross revenue will be the rate
imposed by the Town on incumbent franchised cable operators;
[2]
Solely for purposes of this section, the term "gross revenue"
has the meaning set forth in 47 CFR § 76.1511, and includes:
[a]
All gross revenue received by an open video system operator
or its affiliates, including all revenue received from subscribers
and all carriage revenue received from unaffiliated video programming
providers; and
[b]
All advertising revenue received by the operator or its affiliates
in connection with the provision of Video Programming, where the revenue
is included in the calculation of the franchise fee paid to the Town
by a cable operator.
(c)
The term "gross revenue" does not include revenue, such as subscriber
or advertising revenue, collected by unaffiliated video programming
providers.
(d)
The obligation of the open video system operator to comply with
requirements relating to information collection and recordkeeping,
accounting procedures, reporting, periodic audits and inspection of
records in order to ensure the accuracy of the fees on the gross revenue;
(e)
The obligation of the open video system operator to meet the
Town's requirements with respect to public, educational, and
governmental access channel capacity, services, facilities and equipment,
as provided for in 47 CFR 76.1505. In this regard, the following standards
and procedures shall apply:
[1]
The open video system operator is subject to the same public,
educational, and governmental access requirements that apply to incumbent
franchised cable operators;
[2]
The open video system operator must ensure that all subscribers
receive all public, educational, and governmental access channels
within the franchise area in which the Town's subscribers are
located;
[3]
The open video system operator may negotiate with the Town to
establish the operator's obligations with respect to public,
educational, and governmental access channel capacity, services, facilities,
and equipment. These negotiations may include the Town's any
franchise cable operator if the Town, the open video system operator,
and the franchised cable operator so desire; and
[4]
If the open video system operator and the Town are unable to
reach an agreement regarding the operator's obligations with
respect to public, educational, and governmental access channel capacity,
services, facilities, and equipment within the Town's jurisdiction,
then the following obligations will be imposed:
[a]
The open video system operator must satisfy the same public,
educational, and governmental access obligations as a franchised cable
operator by providing the same amount of channel capacity for public,
educational, and governmental access and by matching the franchised
cable operator's annual financial contributions in support of
public, educational, and governmental access services, facilities
and equipment that are actually used by the Town. For in-kind contributions,
such as cameras or production studios, the open video system operator
may satisfy its statutory obligation by negotiating mutually agreeable
terms with the franchised cable operator, so that public, educational,
and governmental access services to the Town are improved or increased.
If these terms cannot be agreed upon, the open video system operator
must pay to the Town the monetary equivalent of the franchised cable
operator's depreciated in-kind contribution, or, in the case
of facilities, the annual amortization value. Any matching contributions
provided by the open video system operator must be used to fund activities
arising under Section 611 of the Communications Act; and
[b]
The Town will impose upon the open video system operator the
same rules and procedures that it imposes upon a franchised cable
operator with regard to the open video system operator's use
of channel capacity designated for public, educational, and governmental
access use when that capacity is not being used for these purposes.
[c]
A franchised cable operator is required under federal law to
permit the open video system operator to connect with its public,
educational, and governmental access channel feeds. The open video
system operator and the franchised cable operator may decide how to
accomplish this connection, taking into consideration the physical
and technical characteristics of the cable and the Open Video Systems
involved. If the franchised cable operator and the open video system
operator cannot agree on how to accomplish the connection, the Town
has the right to decide. The Town may require that the connection
occur on Town-owned property or on public ways;
[d]
All costs of connection to the franchised cable operator's public, educational, and governmental access channel feed must be borne by the open video system operator. These costs will be counted towards the open video system operator's matching financial contributions set forth above in Subsection E(2)(e)[4][a] above;
[e]
The Town will not impose upon the open video system operator
any public, educational, or governmental access obligations that are
greater than those imposed upon a franchised cable operator; and
[f]
The open video system operator must adjust its Open Video System
to comply with new public, educational, and governmental access obligations
imposed on a franchised cable operator following renewal of the cable
operator's franchise; provided, however, that the open video
system operator will not be required to displace other programmers
using its Open Video System to accommodate public, educational, and
governmental access channels. The open video system operator must
comply with the new public, educational, and governmental access obligations
whenever additional capacity is or becomes available, whether it is
due to increased channel capacity or to decreased demand for channel
capacity.
(f)
If the Town and the open video system operator cannot agree
on the application of the FCC's rules regarding the open video
system operator's obligations to provide public, educational,
and governmental access under the provisions of this section, then
either party may file a complaint with the FCC in accordance with
the dispute resolution procedures set forth in 47 CFR 76.1514. No
agreement will be executed by the Town until the dispute has been
finally resolved;
(g)
If the open video system operator intends to maintain an institutional
network, as defined in Section 611(f) of the Communications Act, the
Town shall require that educational and governmental access channels
be designated on that institutional network to the same extent that
those channels are designated on the institutional network of a franchised
cable operator;
(h)
The authority of an open video system operator to exercise editorial
control over any public, educational, or governmental use of channel
capacity will be restricted in accordance with the provisions of 47
CFR 76.1505(f).
(i)
The open video system operator shall comply with all applicable
federal, state, and local statutes, ordinances and regulations relating
to customer service standards;
(j)
If a new physical plant is proposed to be constructed within
the Town, the obligation of the open video system operator to comply
with the following public ways use and management responsibilities
that are also imposed by the Town upon other cable television and
telecommunications service providers in a nondiscriminatory and competitively
neutral manner:
[1]
Compliance with all applicable Town codes, including those applicable
to excavation, encroachment, and construction in the public ways,
including permits and inspection, and the payment of permit and inspection
fees;
[2]
The coordination of construction activities with the Town and
with other users of the public ways;
[3]
Compliance with established standards and procedures for constructing
facilities across private property;
[4]
Compliance with all applicable insurance and indemnification
and performance bond requirements imposed on franchised cable operators
and other users of the public ways;
[5]
The repair and resurfacing of construction-damaged streets;
and
[6]
Compliance with all public safety requirements that are applicable
to cable television and telecommunications service providers using
public property or public ways.
(k)
Acts or omissions constituting breaches or defaults of the agreement,
and the applicable penalties, liquidated damages and other remedies,
including fines or the suspension, revocation or termination of the
agreement;
(l)
Requirements relating to the sale, assignment or transfer of
the Open Video System;
(m)
Requirements relating to the open video system operator's
compliance with and implementation of state and federal laws, rules,
and regulations pertaining to the operation of the Open Video System;
and
(n)
Additional requirements, conditions, terms policies and procedures
as may be mutually agreed upon by the Town and the open video system
operator and that will, in the judgment of the Town, best serve the
public interest and protect the public health, welfare and safety.
F.
Extension of facilities. Any open video system agreement approved
by the Town shall contain a provision whereby the open video system
operator agrees upon request to extend cable service to all areas
of the Town. If the open video system operator determines that provision
of cable service is not economically feasible, any person requesting
service may appeal the decision to the governing body of the Town.
