[Ord. No. 135-94, 9-19-1994]
This chapter may be known and cited as the "Multi-Channel Service Providers Regulatory Ordinance for the City of Albertville, Alabama."
[Ord. No. 135-94, 9-19-1994]
This chapter shall be construed in accordance with the applicable federal and state laws governing multi-channel service practices, which specifically includes the operation and provision of a cable television system.
[Ord. No. 135-94, 9-19-1994]
This chapter shall apply within the geographical limits of the City, including any areas subsequently annexed by the City, unless state law prescribes otherwise, or in some fashion restricts or alters the effect of this chapter to a subsequently annexed area of the City.
[Ord. No. 135-94, 9-19-1994]
If any word, phrase, sentence, part, section, subsection, or other portion of this chapter, or any application thereof to any person or circumstance, is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.
[Ord. No. 135-94, 9-19-1994; Ord. No. 2040-26, 6-2-2026]
For purposes of this chapter, and where not otherwise inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
Means those telephone calls that are connected to an MCS provider's general information number, without being attended by a representative of the MCS provider, or by a device capable of problem and/or inquiry resolution (e.g., placing a service request, placing a work order, directing calls to the appropriate personnel, or the like).
Means a government, education, or public channel which is carried on a multi-channel system, but which is not part of any institutional network.
Means a channel engineered at the head end of the multi-channel system for the provision of services generally available to residential subscribers of the multi-channel system, regardless of whether such services actually are provided, including any channel designated for governmental, educational, or public use.
When used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with such person.
Means the process whereby the MCS provider offers multi-channel services via the multi-channel system in a format that allows the subscriber to select and be charged for multi-channel services on either a per channel, per program, or per event basis. Menu-driven cable allows the subscriber to create his or her own service tier(s) or cluster(s), and the opportunity to change the composition of his or her tier(s) or cluster(s) on a periodic basis.
Means a charge used in place of a franchise fee that the Council requires as payment for the privilege of using the streets, easements, public ways, or rights-of-way of the City in order to construct, maintain, and/or operate a multi-channel system. An alternative user charge is not based on an MCS provider's gross annual revenues (as is the case in a franchise fee), but rather is based on the value of the City property that an MCS provider uses to construct, maintain, and operate its multi-channel system.
Means a person submitting an application or proposal to the City for a license or franchise (where required) to operate a multi-channel system under the terms and conditions set forth in this chapter, and any state regulations.
Are synonymous for the purposes of this chapter. An application or proposal means the process by which the applicant submits a request and indicates a desire to be granted a license or franchise (where required) for all, or a part, of the City. An application or proposal includes all written documentation, and verbal statements and representations, in whatever form or forum, made by an applicant to the Council/franchising authority concerning the construction, rendering of services, maintenance, or any other matter pertaining to the proposed multi-channel system.
Means any transfer of a franchise, in whole or in part, whether by sale, assignment, lease or other form of alienation, or change in operational or managerial control.
Means equipment supplied by the MCS provider (such as a converter, remote control unit or device, digital tuner, or input selector switch) to enhance or assist in the reception or provision of multi-channel service.
Means any service tier which includes the retransmission of local television broadcast signals and any public, educational and government access channels. The term "basic cable television service" necessarily includes any service tier or programming service required under the provisions of the Cable Television Consumer Protection Act of 1992.
Means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection Act of 1992, all of which are amendments to the Communications Act of 1934.
Means a portion of the electromagnetic or light frequency spectrum used in a cable system which is capable of delivering a television channel (as "television channel" is defined by the FCC by regulation).
Means any person or group of persons who:
Means:
Means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video, voice or data programming, and which is provided to multiple subscribers within the City. However, such terms do not include the following:
A facility that serves only to retransmit the television signals of one or more broadcast stations; or
A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management unless such facility or facilities use any public rights-of-way; or
A facility of a common carrier which is subject, in whole, or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system [other than for purposes of Section 621(c) of the Cable Act, codified at 47 U.S.C. § 541] to the extent such facility is used in the transmission of video, voice, or data programming or service directly to subscribers; or
Any facilities of any electric utility used solely for operating its electric utility.
Means a one-time or non-regularly occurring cost paid by the subscriber, and which is associated with the installation, maintenance, service, or repair of the multi-channel service. Specifically, a charge includes, but is not limited to, address change charges for subscribers; disconnection fees; downgrade charges; costs for closed-captioned devices and equipment, remote control devices and equipment for hearing-impaired customers; installation charges for video camera recorders and players; installation charges for digital radio; and trip or service call charges.
Means the City of Albertville, Alabama.
Means the City Council for the City of Albertville, Alabama.
Means a charge or fee imposed on a customer by an MCS provider for such provider's efforts at collecting, or attempting to collect, a past due and/or delinquent account.
Means, with respect to any requirement applicable to an MCS provider, that is commercially impracticable for such an MCS provider to comply with such requirement as a result of a change in conditions which is beyond the control of such an MCS provider, and the non-occurrence of which was the basic assumption on which the requirement was based.
Means any electric, electronic, or other device, separate and apart from the subscriber's receiver, that is capable of converting or changing signals to a frequency not intended to be susceptible to interference within the television, video, or data receiver of a subscriber, and by an appropriate channel or other type of selector may also permit a subscriber to view or otherwise use signals delivered at designated dial locations, or such other reception and use allocations as may be applicable and required for the practical use of the signal.
Means the City Council for the City of Albertville, Alabama.
Means customer service representative.
Means a subscriber or user of the services and/or facilities of the multi-channel system provided by an MCS provider.
Means an imminent, impending, or actual natural or humanly induced situation wherein the health, safety, or welfare of the residents of the City is threatened. A disaster emergency (by illustration) may include a sudden or expected insect infestation (such as with locusts, grasshoppers, or bees), snowstorm, flood, hail storm, tornado, severe thunderstorm, hazardous waste infiltration, fire, petroleum, munitions, or nuclear explosion, or aircraft crash.
Means a change in the level of a subscriber's multi-channel service from a more comprehensive level of multi-channel service (in terms of services or channels provided) to a less comprehensive level of multi-channel service (in terms of services or channels provided).
Means and shall include any public easement or other compatible use created by dedication, or by other means, to the City for public utility purposes or any other purpose whatsoever, including cable television, or any multi-channel service. "Easement" shall include a private easement used for the provision of cable service or any other multi-channel service.
Means the Federal Communications Commission and/or such other federal regulatory agency as now or in the future may have jurisdiction to oversee MCS providers.
Means very thin and pliable cylinders, or strands of glass or plastic, or any future functional equivalent, used to carry wide bands of multiple frequencies.
Means the initial authorization or subsequent renewal granted by the City in order for a person to construct, operate, and/or maintain a franchised MCS system in all, or part, of the City.
Means the separate contract by which the City grants an MCS provider the right to operate a franchised multi-channel system within all, or a part, of the City.
Means the date of expiration, or the end of the term of a franchised MCS provider's franchise.
Means a fee or charge that the City requires as payment for the privilege of using the streets, rights-of-way, public ways, and easements of the City in order to construct, maintain, and operate a franchised multi-channel system.
Means a person that is awarded a franchise by the City to construct or operate a franchised multi-channel system, within all, or part, of the City. The term "franchised MCS provider" specifically includes the term "cable operator."
Means the City Council for the City of Albertville, Alabama.
With respect to a specifically named piece of multi-channel system equipment, means another piece of multi-channel system equipment that either:
Has the same or substantially similar characteristics, qualities, operational capabilities, and design functions as the original, specifically named or referenced piece of multi-channel system equipment; or
Operates in substantially the same form and fashion as the original, specifically named or referenced piece of multi-channel equipment; or
Operates in a technologically superior manner to the original, specifically named or referenced piece of multi-channel equipment.
For any period means any and all revenues for that period which are derived from the operation of the MCS system within the City. Further, "gross revenue" means any, and all, revenues for any period which are derived from, or attributable to, the operation of the MCS system or are occasioned by the grant of the franchise. "Gross revenue" includes any and all revenue in whatever form (cash, exchange, or other consideration) of the MCS provider, its affiliates, subsidiaries, or parent. However, "gross revenue" does not include any taxes imposed and/or assessed by law on subscribers (such as state sales taxes) which an MCS provider collects and pays in full to the applicable authorities. Note well, though, that for purposes of this chapter, the gross revenues computational base shall include any, and all, revenues or fees collected by an MCS provider which are designated or classified as, or set aside or attributed for, franchise fees.
Means the electronic control center where incoming signals, including those of television broadcast stations, are amplified, modulated, filtered, converted, or in any way processed or converted for redistribution to subscribers.
Means a day recognized by the state in which a substantial portion of the area's workers are exempt from work even though paid.
Means a charge which is added to a customer's account or bill for non-payment of a previously due and delinquent account.
Means the Mayor for the City of Albertville, Alabama.
Means multi-channel service.
Means any person or group of persons who:
Provides multi-channel communications service over a multi-channel system, regardless of the technology employed and subject to federal and state preemption or limitation, and directly or indirectly owns a significant interest in such multi-channel system; or
Otherwise controls or is responsible for, through any arrangement, the management and operation of such a multi-channel system.
The term "MCS provider" or "multi-channel service provider" specifically includes the terms "cable operator," "MCS provider" or "multi-point distribution system provider," "MDS provider," "personal communications network system provider" (where applicable and permitted under federal or state rule or regulation), and "SMATV operator." |
Means multi-point distribution system.
Means any person or group of persons authorized by the FCC to transmit specialized multi-channel programming to subscriber-selected locations.
Means:
The one-way transmission to subscribers of video programming, or other programming service, irrespective of the technology employed and subject to federal and state preemption or limitation; and
Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
Means a facility consisting of closed transmission paths and associated signal generation, reception and control equipment; or a facility consisting of infrared transmission or point-to-point transmission (as permitted by law); or any functional equivalent that is designed to provide multi-channel service which includes video, voice, or data programming to multiple subscribers within the City. However, such term does not include the following:
A facility that serves only to retransmit the television signals of one or more broadcast stations; or
A facility that serves only subscribers in one or more multi-unit dwellings under common ownership, control, or management unless such facility or facilities use any public-rights-of-way; or
A facility of a common carrier which is subject, in whole, or in part, to the provisions of Title II of the Communication Act of 1934, except that such facility shall be considered a multi-channel system [other than for purposes of Section 621(c) of the Cable Act, codified at 47 U.S.C. § 541] to the extent such facility is used in the transmission of video, voice, or data programming or service directly to subscribers; or
Any facilities of any electric utility used solely for operating its electric utility.
Means the Multi-Channel Service Providers Regulatory Ordinance for the City of Albertville, Alabama.
Means information that an MCS provider (specifically including a cable operator) makes available to all subscribers generally.
Means the delivery over the multi-channel system of audio and/or video signals for a rate or amount (over and above the rate for basic service) on a per event, or per program, or per channel basis.
Means public, educational, and governmental.
Means any individual, corporation, estate, trust, partnership, association of two or more persons having a joint common interest, joint-stock company, or governmental entity.
Means:
Means the periodic price paid by a subscriber for the receipt of any multi-channel service provided for by an MCS provider.
Means an official act by the Council/franchising authority that removes, repeals, or rescinds previously approved authorization for a licensed or franchised MCS provider to operate a multi-channel system within the City.
For purposes of credit means the loss of picture or sound on all basic subscriber channels, or one or more auxiliary programming channels (including tiers). For purposes of response to a service call, a service outage means a loss of picture or sound or other service provided by an MCS provider which is not caused by the failure or malfunction of a subscriber's television receiver or monitor, or by the misfeasance or malfeasance of the subscriber.
Means a category of multi-channel service or other programming service provided by an MCS provider, and for which a separate rate is charged by an MCS provider.
Means satellite master antenna television.
Means any person or group of persons who:
Means a private multi-channel system not crossing any public rights-of-way and which is located on private property, and serving private dwellings.
Means the State of Alabama.
Means the surface of and the space above and below a public street (or any path or thoroughfare designated for vehicular and/or pedestrian traffic) or other easement now or hereafter held by the City (including any street, as defined by eminent domain) for the purpose of public travel.
Means a person lawfully receiving multi-channel service delivered by an MCS provider.
Means United States Code.
Means a person or organization utilizing a multi-channel system and/or its equipment for purposes of production and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity.
Means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
[Ord. No. 135-94, 9-19-1994]
(a)
The Council/franchising authority is hereby designated the officer of the City that is responsible for the continuing administration of this chapter and matters related to multi-channel service, including cable service, cable systems, and cable operators.
(b)
Unless prohibited by federal, state or local law, the Council/franchising authority may further delegate its powers and authority to a duly authorized representative with respect to administering this chapter or an applicable franchise agreement.
(c)
Moreover, unless prohibited by federal, state, or local law, the Council/franchising authority may create an appointed or elected advisory board, commission, or committee which is designed to handle issues concerning multi-channel service and multi-channel service providers. If such a board, commission, or committee is created, then a separate resolution, ordinance, or document shall be adopted wherein the precise powers and authorities of the board, commission or committee shall be noted.
(d)
However, the Council/franchising authority may never delegate its franchising (initial or renewal) or revocation power to another person or representative (including an advisory board, commission, or committee). Moreover, while the Council/franchising authority may use an outside consultant to review any rates that are subject to the City's review under the Cable Act, the Council/franchising authority nonetheless may not delegate its ultimate rate-making power to another person or representative (including an advisory board, commission, or committee).
[Ord. No. 135-94, 9-19-1994]
(a)
With respect to provisions classified as consumer protection and customer service, and specifically those sections numbered §§ 17-37 through 17-75 that are contained within this chapter, such sections and provisions shall be applicable to an MCS provider unless such MCS provider is either exempted from this chapter (or any applicable provision) or granted relief from any applicable provision of this chapter. Moreover, such MCS provider shall be expected to comply with, and abide by, applicable consumer protection and customer service provisions no later than 300 days after the effective date of this chapter.
(b)
With respect to all other provisions contained within this chapter, those provisions shall be applicable to an MCS provider unless such MCS provider is either exempted from this chapter (or any applicable provision) or granted relief from any applicable provision of this chapter. Moreover, such MCS provider shall be expected to comply with, and abide by, those sections and provisions no later than 360 days after the effective date of this chapter, unless a different compliance date is given or noted (including a different date noted in a franchise agreement).
(d)
As a result of Subsection (c) of this section, the provisions of this chapter shall have no effect on an existing franchise agreement until the expiration of such existing agreement, or until one of the following occurs:
(1)
Prior to the franchise agreement expiration date, the Council/franchising authority and the affected franchised MCS provider either execute an amended franchise or renewal franchise agreement in which both parties agree to be bound by the terms of this chapter (except as specifically granted relief, exemption, clarification, or comparable policy); or
(2)
Both parties agree to a specific date for expiration of said existing franchise, which in fact is prior to the present franchise expiration date; or
(3)
A court of competent jurisdiction orders that an existing MCS provider become subject to all, or any part or provision, of this chapter.
[Ord. No. 135-94, 9-19-1994]
(a)
MCS providers who are exempted from complying with the provisions of this chapter are as follows:
(1)
An MCS provider who is exempted from this chapter as a result of federal or state law;
(2)
An MCS provider who is exempted from this chapter as a result of an applicable FCC ruling; or
(3)
An MCS provider who is exempted from this chapter as a result of an applicable judicial ruling, from which all subsequent appeals have been exhausted or concluded.
(b)
It is expressly understood that an exempted MCS provider remains exempted only as long as it meets one or more of the criteria of this particular section.
(c)
A qualified MCS provider is exempt only from this chapter. Consequently, such an exempted MCS provider shall abide by, and comply with, any other applicable City, state, or federal laws and regulations, including any applicable federal or state consumer protection or customer service laws and regulations.
[Ord. No. 135-94, 9-19-1994]
(a)
Any MCS provider affected by this chapter may file a written petition, at any time, with the Council/franchising authority seeking relief from one or more provisions of this chapter. An MCS provider may specifically request the exemption from, or delay in implementation (as to the petitioning MCS provider only) of, one or more provisions of this chapter. Also, the MCS provider may request that a specific provision of this chapter apply to such MCS provider for a specified length of time or duration. The petition shall set forth the relief requested and the basis thereof with such supporting information and material as may be applicable.
(b)
In order to receive any relief from one or more of the provisions of this chapter, an MCS provider must satisfactorily demonstrate to the Council/franchising authority that at least one of the following facts exists:
(1)
The provision and/or requirement is expressly prohibited by federal law, the FCC, or state law;
(2)
Where applicable, that the provision in question materially affects, and is in conflict with, an expressed right that is specifically noted in an existing franchise agreement (but only for the term of the existing franchise) [this provision covers situations where an MCS provider classified as a cable operator seeks, and is granted, modification of an existing franchise agreement under Section 625 of the Cable Act (codified at 47 U.S.C. § 545)];
(3)
That compliance with a particular provision and/or requirement will be commercially impracticable for an MCS provider;
(4)
That one or more time frames listed in this chapter are either impossible to meet or impractical to meet in light of the MCS provider's operational policy;
(5)
That the MCS provider has its own construction, maintenance, operation, or customer service policy, which the Council/franchising authority deems comparable to, or exceeding, any provision and/or requirement from which the MCS provider seeks relief; or
(6)
That the health, safety, and welfare interests of the City otherwise warrant the granting of such relief.
(c)
The Council/franchising authority shall have the responsibility of determining whether an MCS provider's construction, maintenance, operation, or customer service policy is comparable to, or exceeds, a similar provision in this chapter.
(d)
As an alternative to seeking an exemption, or requesting relief, an MCS provider may petition for clarification concerning the precise intent and effect that one or more provisions or sections of this chapter have on the petitioning MCS provider.
(e)
In those instances where the Council/franchising authority grants an exemption or relief to a franchised MCS provider, or deems a franchised MCS provider's operational policy to be comparable to an ordinance provision, then the franchise agreement (initial, existing, or renewal) shall be amended within 60 days to reflect the exact extent of such exemption and/or relief.
(f)
It should be specifically noted that the benefit of such exemption, relief, clarification, or comparable policy extends only to the MCS provider granted such exemption, relief, clarification, or comparable policy. Consequently, in the case of a transfer, assignment or sale of the system, the proposed transferee, assignee, or buyer may have to (if demanded by the Council/franchising authority) petition again for such relief, clarification, exemption, or comparable policy substitution.
[Ord. No. 135-94, 9-19-1994]
An MCS provider shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the Council/franchising authority on any one or more occasions to seek, or insist upon, compliance with such requirements or provisions.
[Ord. No. 135-94, 9-19-1994]
(a)
Any MCS provider, its assignee, or transferee shall be subject to, and expected to comply with, all applicable ordinances and/or resolutions now or hereafter adopted and in effect within the City, including this chapter, to the extent that said MCS provider has not received an exemption or relief from said ordinance(s) and/or resolution(s).
(b)
Any MCS provider, its assignee, or transferee shall be subject to, and expected to comply with, all federal and state laws, and with all rules and regulations issued by all applicable regulatory agencies (including, where applicable, the FCC), now or hereafter in existence. However, if the City amends this chapter, and the amendment of this chapter would have the effect of either unilaterally imposing significant new costs on the MCS provider, or unilaterally changing the process for default and/or revocation of an MCS provider's franchise, then such amendment of this chapter shall have no effect on the affected MCS provider.
(c)
Any MCS provider, its assignee, or transferee shall be subject to all lawful exercise of the City's police power.
(d)
With respect to future ordinances and/or resolutions noted in this section, nothing contained herein prevents an MCS provider from exercising any, and all, of its administrative and legal rights in order to challenge the constitutionality, applicability, and enforceability of said future ordinances and/or resolutions.
[Ord. No. 135-94, 9-19-1994]
(a)
In any case of an actual inconsistency between any provision or section of this chapter and any provision or section of a federal or state rule, regulation, or law, then the federal or state rule, regulation, or law shall not only supersede the effect of this chapter but also control in any local application, unless such federal or state rule, regulation or law does not preempt, supersede, or make invalid the inconsistency.
(b)
The above subsection specifically includes any situation wherein an applicable federal or state judicial decision creates an actual inconsistency with any provision or section of this chapter. In such a situation, the federal or state judicial decision shall not only supersede the effect of the chapter but also control in any local application, unless such federal or state judicial decision does not preempt, supersede, or make invalid the inconsistency.
[Ord. No. 135-94, 9-19-1994; Ord. No. 2040-26, 6-2-2026]
(a)
Where there is a conflict (actual or apparent) between this chapter and a subsequent franchise agreement, this chapter shall control, and prevail, unless administratively or judicially determined invalid, unenforceable, or unconstitutional, or unless the provisions of Subsection (b) of this section apply to the MCS provider and its franchise agreement.
(b)
Where a franchised MCS provider receives an exemption, relief, or clarification from one or more provisions or sections of this chapter, or has one or more of its policies deemed comparable to a provision contained in this chapter, the franchise agreement shall specifically note such exemption, relief, clarification, or comparable policy. As a result, to the extent that such an exemption, relief, clarification, or comparable policy is inconsistent with a provision contained in this chapter, then the specifically noted exemption, relief, clarification, or comparable policy language contained in the franchise agreement shall control.
[Ord. No. 135-94, 9-19-1994]
(a)
To the extent permitted by state and local law, the Council/franchising authority reserves the authority to institute a penalties schedule for violations of this chapter. Where appropriate and/or applicable, violations of this chapter shall be handled in the manner prescribed by either state or local law.
(b)
In instances where a franchise agreement provides for assessed charges or liquidated damages for a breach or violation of that franchise agreement, then such assessed charges or liquidated damages shall operate as a separate and independent remedy for the City to pursue.
(c)
Notwithstanding the other provisions in this section, an MCS provider shall not be subject to such provisions in instances of force majeure (as outlined elsewhere in this chapter) and/or a technical violation of this chapter or, where applicable, a technical breach of a franchise agreement (as outlined elsewhere in this chapter).
(d)
Notwithstanding the other provisions in this section, a franchised MCS provider shall be subject to possible default and/or revocation for cause as set forth in this chapter.
[Ord. No. 135-94, 9-19-1994]
Notwithstanding the provisions contained in § 17-15 of this chapter, an MCS provider shall not be subject to penalties, fines, forfeitures or (where applicable) revocation of a franchise for a so-called technical violation of this chapter or (where applicable) a technical breach of a franchise agreement. For purposes of this chapter, technical violations or breaches include the following:
(1)
Instances or in matters where a violation of this chapter or (where applicable) a franchise agreement by an MCS provider was a good faith error that resulted in no or minimal negative impact on the customers within the City; or
(2)
Instances or circumstances that existed and were reasonably beyond the control of an MCS provider (including force majeure situations) and that precipitated a violation of this chapter or (where applicable) a franchise agreement, or prevented an MCS provider from complying with this chapter or (where applicable) a franchise agreement.
[Ord. No. 135-94, 9-19-1994]
(a)
Notwithstanding the other provisions of this chapter, an MCS provider shall not be held in violation, integral or material breach, default or noncompliance of this chapter or a franchise agreement, nor suffer any enforcement or penalty relating thereto (including, where applicable, termination, cancellation or revocation of a franchise and/or license), where such violation, breach, default or noncompliance occurred and/or was caused by an earthquake, flood, tidal wave, hurricane, or similar act of nature, or other event that is reasonably beyond an MCS provider's ability to anticipate and control. Force majeure also covers strikes, riots, wars, and armed insurrections. Force majeure also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which an MCS provider's cable and/or equipment is attached.
[Ord. No. 135-94, 9-19-1994]
If the Council/franchising authority and a franchised MCS provider agree to such, and the federal or state law does not expressly prohibit such, then arbitration or settlement mediation may be used to resolve any dispute that arises out of this chapter or a franchise agreement. The terms and conditions relating to the arbitration or settlement mediation process (including possible cap on costs expended by both parties, composition of the hearing panel, and liability, if any, for costs expended) shall be stated with specificity in the franchise agreement.
[Ord. No. 135-94, 9-19-1994]
(a)
Both the Council/franchising authority and each MCS provider shall provide the other party with the name and address of the contact designated to receive notices, filings, reports, records, documents, and other correspondence. All notices shall be delivered to each party's contact by certified mail, return receipt requested, personal service with a signed receipt of delivery, or overnight with receipt verification. All other filings, reports, records, documents, and other correspondence may be delivered by any permissible means, including but not limited to facsimile transmission ("faxing"), personal service, overnight mail or package delivery, or delivery via cable. The delivery of all notices, reports, records, and other correspondence shall be deemed to have occurred at the time of receipt (unless otherwise designated by state law).
(b)
If the MCS provider is required to maintain a franchise, then the designation of such contact person for notice purposes may be contained within a franchise agreement.
[Ord. No. 135-94, 9-19-1994; Ord. No. 2040-26, 6-2-2026]
To the extent that they are consistent with the requirements and responsibilities detailed in this chapter and any applicable state or federal law or regulation, an MCS provider is authorized to promulgate such rules and internal practices as shall be necessary to enable it to exercise its rights and perform its duties under this chapter, the state regulations, and the regulations of the federal agency charged with the responsibility of regulating MCS providers.
[Ord. No. 135-94, 9-19-1994]
(a)
To the extent permitted by law, an MCS provider shall at all times defend, indemnify, protect, save harmless, and exempt the City, the City Council, the Mayor, their officers, agents, servants, and employees, from any, and all, penalty, damage, or charges arising out of claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, which may arise out of, or be caused by, the construction, erection, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of the multi-channel system within the City by a negligent act or omission of an MCS provider, its agents or employees, contractors, subcontractors, independent contractors, or implied or authorized representatives. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included as those costs which may be recovered by the Council/franchising authority.
(b)
The City, City Council, and the Mayor specifically reserve the right to retain counsel of their own choice, at their own expense.
(c)
If an MCS provider obtains counsel for the City, City Council, and the Mayor, then any one of them shall have the right to approve counsel. However, neither the City, City Council, nor the Mayor shall unreasonably withhold its approval of counsel.
(d)
With respect to an MCS provider's own defense of such actions noted in this section, it is understood that such MCS provider reserves the right to select and retain, without the City, City Council, or Mayor's approval, counsel of the MCS provider's choice, at such MCS provider's expense.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall secure and maintain, for as long as it provides multi-channel service to subscribers, public liability, property damage insurance, and umbrella coverage in at least the following amounts:
(b)
An MCS provider's public and personal liability and property damage insurance policy shall specifically include the City, the City Council, and the Mayor as additional named insureds.
(c)
The public and personal liability and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state, and which has one of the three highest or best ratings from the Alfred M. Best Company.
(d)
The public liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Council/franchising authority with at least 30 days' written notice in advance of the cancellation of the insurance.
(e)
Renewal or replacement policies or certificates shall be delivered to the Council/franchising authority at least 15 days before the expiration of the insurance which such policies are to renew or replace.
(f)
Before a multi-channel system provides multi-channel service to subscribers, the MCS provider shall deliver the policies or certificates representing the insurance to the Council/franchising authority, and each policy or certificate delivered shall be accompanied by evidence of payment of the full premium thereon.
(g)
If the state permits an MCS provider to self-insure, then the MCS provider may exercise its right to self-insure, so as long as the minimum amounts of insurance coverage outlined in this section are met and maintained for the entire period that the affected MCS provider is self-insured.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall furnish to the Council/franchising authority a performance bond or security bond executed by a surety licensed to do business in this state in an amount totalling at least $50,000. The purpose of the performance bond is to ensure performance of any requirements imposed by this chapter on an MCS provider, or imposed on an MCS provider by virtue of its franchise agreement. Further, the purpose is to guarantee that should the MCS provider not fulfill any obligations imposed by this chapter (or, where applicable, a franchise agreement), then the surety will make whole (to the extent of the policy) any monetary losses incurred by the City.
(b)
Any MCS provider shall furnish to the Council/franchising authority a construction/completion bond prior to the time it commences a construction, upgrade, rebuild, or repair/maintenance project that has a capital construction cost or outlay exceeding $100,000 in value. The amount of the bond shall equal 90% of the projected capital construction cost or outlay.
(c)
The construction/completion bond or security bond shall specifically guarantee that an MCS provider will timely abide by its construction, upgrade, rebuild, or repair/maintenance schedule for the multi-channel system and/or any timetable for technical and service improvements or additions to the multi-channel system as may be committed to, or agreed upon, from time to time, by the Council/franchising authority and MCS provider.
(d)
If the Council/franchising authority draws on a performance or completion bond or cash deposit as a result of an MCS provider's failure to timely discharge its obligations, or failure to construct and activate the multi-channel system, or failure to complete a multi-channel system upgrade or rebuild or repair/maintenance, then the MCS provider shall be required to replenish within 60 days the completion and performance bond or security bond to the minimal level required by the Council/franchising authority.
(e)
The performance bond or security bond shall be in force at all times unless relief is granted or a reduction schedule is detailed in a separate agreement, executed between the MCS provider and the Council/franchising authority.
(f)
In lieu of a performance bond, and construction/completion bond, the Council/franchising authority may accept a written guarantee of an MCS provider pledging the full faith and credit of the affected MCS provider should there be a breach in a material franchise term, or failure to meet any construction schedule.
[Ord. No. 135-94, 9-19-1994]
(a)
Notwithstanding the insurance and bonding requirements contained elsewhere in this chapter, an MCS provider shall obtain and maintain any other types of insurance and bonds (including, but not limited to, workers' compensation insurance and automobile liability insurance) that are mandated by either federal or state government.
(b)
Where applicable and required, such MCS providers shall maintain such insurance and/or bonds in at least the minimal amounts and according to the minimal terms and provisions mandated by the federal or state government.
[Ord. No. 135-94, 9-19-1994]
(b)
Though not exhaustive, an MCS provider shall maintain a public inspection file which includes among other records:
(c)
Moreover, though not required by federal or state law, the Council/franchising authority nevertheless requires as a matter of public policy for the MCS provider to maintain the following additional records in its public inspection file:
[Ord. No. 135-94, 9-19-1994]
(a)
Notwithstanding any requirements contained elsewhere in this chapter, an MCS provider shall maintain and retain such records and reports necessary for the Council/franchising authority to determine compliance with the obligations imposed on it by this chapter, and to determine the MCS provider's legal, technical, financial, and character qualifications.
(b)
On or before January 1 of each year after the effective date of this chapter, an MCS provider shall submit to the Council/franchising authority a list of files, reports, records, data or other information that the MCS provider periodically, customarily, and/or regularly files with the FCC, or another federal or state agency. For any other report that an MCS provider files with another federal or state agency (and that has a direct impact on the operation of the MCS provider's multi-channel system), then the MCS provider shall notify the Council/franchising authority of such filing within 60 days of said filing. Said notice shall inform the Council/franchising authority of the nature and scope of the filing, as well as the recipient (name, address, department, division, and phone number) of the filing. As part of a performance evaluation, or for any legitimate matter related to the administration and enforcement of an MCS provider agreement, the Council/franchising authority may specifically request that it be provided with any or all listed reports, records, data, or other information that was originally filed with the FCC, the Securities and Exchange Commission (SEC) or another federal or state agency. However, unless specifically authorized by the state, an MCS provider shall not be required to provide the Council/franchising authority any state or federal tax returns, or any documents (inclusive of all above-referenced categories) exempted under state or federal privacy laws, including Section 631 of the Cable Act (codified at 47 U.S.C. § 551).
(c)
In addition to the requirements noted in Subsection (b) of this section, an MCS provider shall timely submit those reports, statements, and logs required by this chapter, including, but not limited to, the following:
(1)
A periodic gross revenue statement in the manner set forth in this chapter;
(2)
A periodic certification that answering of phones is meeting the specifications listed in this chapter;
(3)
Evidence of the satisfactory resolution of problems and complaints in the manner set forth in this chapter;
(4)
Preventive maintenance reports in the manner set forth in this chapter;
(5)
Where applicable, FCC Form 393 or 1200 (or equivalent) rate worksheets;
(6)
Where applicable, FCC Form 394 (or equivalent) concerning assignment or transfer of a franchised multi-channel system classified as a franchised cable system;
(7)
Where applicable, FCC Form 395-A (or equivalent) concerning equal employment opportunity (EEO) and fair contracting policies;
(8)
Where applicable, annual reports noting and detailing the obligations of MCS providers serving other communities within the State of Alabama; and
(9)
Any other reports or information required by another section of this chapter, or by the Council/franchising authority, which are necessary to protect the health, safety, and welfare of the citizens of the City.
[Ord. No. 135-94, 9-19-1994; Ord. No. 2040-26, 6-2-2026]
(a)
The Council/franchising authority recognizes that one or more MCS providers operating within the City may also serve other communities within the State of Alabama. The Council/franchising authority also recognizes that such an MCS provider may have differing obligations and commitments as to the other communities that it serves. Further, the Council/franchising authority recognizes that from time to time (such as the time of a franchise assignment, or franchise renewal, or rate regulation analysis) it will have need to know the obligations and commitments of the MCS provider in order to determine whether the Council/franchising authority's requests are reasonable and/or financially practicable.
(b)
Consequently, on or before January 1 of each year after the effective date of this chapter, an MCS provider shall submit to the Council/franchising authority a report noting and detailing the obligations and commitments of a local MCS provider serving other communities within the state.
(c)
An MCS provider's initial annual report to the Council/franchising authority should contain, at a minimum, the following:
(1)
The percentage and computational base of any imposed franchise fee;
(2)
The design of the system (fiber vs. coaxial cable, or something else);
(3)
The number, type, and level of services provided;
(4)
The precise nature of any PEG obligations or commitments;
(5)
The average number of weekly customer service hours;
(6)
The type and design of any phone answering system;
(7)
The nature and extent of any preventive maintenance policy;
(8)
The nature and extent of any emergency alert override system; and
(9)
The nature and extent of any system expansion policy.
(d)
After an MCS provider submits its initial annual report to the Council/franchising authority, then subsequent reports need only to contain updated information, that is, information or data that has changed or been modified.
(e)
If, during the course of a calendar year, an MCS provider acquires or starts to provide service to a previously unserved (by that MCS provider) community within the state, then on or before the following January 1 the MCS provider shall file a report containing the information contained in Subsection (c) of this section, and thereafter updating the information as noted in Subsection (d) of this section.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall keep complete and accurate books of accounts and records of the business and operations under, and in connection with, the multi-channel system.
(b)
The Council/franchising authority shall have the right to review (either by mail or at the MCS provider's local office) all records needed for the administration and enforcement of this chapter and/or franchise agreement on seven days' written request, unless specifically exempted by the Council/franchising authority. Such review, unless mutually agreed upon, or judicially ordered, shall occur within the MCS provider's regular office hours.
(c)
The Council/franchising authority shall have the right to hire, at its own expense, an independent certified public accountant, or other business or financial expert, to review the books and records of an MCS provider. If after a financial audit it is determined that the MCS provider has underpaid amounts owed to the City by any amount, then the Council/franchising authority may require the MCS provider to reimburse the affected party for the actual cost of the audit. Absent fraud, any such audit by an independent certified public accountant shall be binding on all parties concerned.
(d)
A false entry into the books and/or records of an MCS provider, made by an MCS provider, of a material fact shall constitute a material violation of this chapter. However, an erroneous entry, made in good faith, shall not constitute a material violation of this chapter.
(e)
An MCS provider, at the local office, shall keep complete and accurate books and records of the key aspects of the multi-channel system's operation for at least the preceding three years in such a manner that all matters pertaining to the City can be easily produced and/or verified at the request of the Council/franchising authority. Also, the MCS provider shall keep, at its local office, and shall make available and provide upon request any other applicable records and information that may be required by any other federal or state agency having jurisdiction over one or more classes of MCS providers.
[Ord. No. 135-94, 9-19-1994]
In addition to any, and all, requirements of this chapter, each and every MCS provider shall comply with, and abide by, all applicable provisions of any state law concerning consumer sales practices.
[Ord. No. 135-94, 9-19-1994]
(a)
The Council/franchising authority recognizes that it is critical that a customer of an MCS provider fully understands and realizes the rights and responsibilities of both the customer and MCS provider with respect to the provision, maintenance, and repair of multi-channel service.
(b)
Further, the Council/franchising authority believes that if sufficient, timely, and easily understood information is provided to a customer on certain customer service practices, such as rates, billing periods, number and types of services provided, and rules concerning equipment use and return, then that customer will have the information necessary to make an informed decision on what, if any, multi-channel services to subscribe to and receive.
(c)
In order to provide customers with the variety of information needed to make an informed decision, and to ensure that customers are notified of their, and the MCS provider's, rights and responsibilities with respect to the multi-channel system, an MCS provider must provide a customer with a written "Notice of a Customer's and MCS Provider's Rights and Responsibilities With Respect to the Provision of Multi-Channel Service."
(d)
The "Notice of a Customer's and MCS Provider's Rights and Responsibilities With Respect to the Provision of Multi-Channel Service" shall be provided at the time of initial installation. Thereafter, a subscriber shall be provided with a written notice at least once every 12 months. If, however, an MCS provider amends, repeals, adds, deletes, modifies, or makes other changes to any customer service practice that is required in this chapter, then said MCS provider shall provide a subscriber with such written notification at least 30 days prior to the effective date of such amendment, repeal, addition, deletion, modification, or other change.
(e)
Unless expressly prohibited by the state, an MCS provider may provide said notice over the MCS system, on a channel clearly designated for the dissemination of such information (such a channel need not be solely designated for dissemination of such information and may, in fact, be used at other times for any lawful purpose).
(f)
If the notice is provided over the MCS system on a channel clearly designated for the dissemination of such information [as referenced in Subsection (e) of this section], such notice shall be cablecast at least three times every week. In such case, and to maximize the opportunity that all subscribers will read the notice, such notice shall be cablecast at least once between 12:00 midnight and 8:00 a.m., once between 8:00 a.m. and 4:00 p.m., and once between 4:00 p.m. and 12:00 midnight.
[Ord. No. 135-94, 9-19-1994]
(a)
At the time an MCS provider is required to furnish an initial or annual notice, such notice shall contain, at a minimum, the following:
(1)
An up-to-date listing of the specific multi-channel services provided, clearly indicating and/or isolating the basic, premium, and informational services offered, as well as the service tiers or service clusters offered;
(2)
Notification of a subscriber's ability to purchase or lease, from the MCS provider, a lock box, parental control mechanism, or other device which will prevent the viewing of a particular multi-channel service during a period selected by the subscriber;
(3)
Any, and all, consumer electronics equipment compatibility notifications required by either federal law or FCC rules and regulations;
(4)
A comprehensive listing and explanation of all rates and charges (including rates for basic and premium channels/services, particular service tiers, current discount or promotional fees, installation charges, and security deposits, if any);
(5)
A comprehensive listing and explanation of all billing options available (such as monthly, quarterly, or yearly, and/or discounts for pre-payments);
(6)
The customer service office hours and telephone number(s) in a manner consistent with the specific policy set forth in this chapter;
(7)
The billing practices of an MCS provider in a manner consistent with the specific policy set forth in this chapter;
(8)
The specific customer complaint/inquiry resolution policy that is adopted and followed by an MCS provider and which is consistent with the parameters set forth in this chapter;
(9)
The method of securing a voluntary disconnection in a manner consistent with the specific policy set forth in this chapter;
(10)
Rules relating to both connections and involuntary disconnections in a manner consistent with the specific policy set forth in this chapter;
(11)
The extent of the credit/refund policy in a manner consistent with the specific policy set forth in this chapter; and
(12)
The equipment use and return policy together with any required security deposits in a manner consistent with the specific policy set forth in this chapter.
(b)
The notice shall be written in plain, simple to understand English and any exclusions, limitations, or caveats shall be clearly indicated as such in the notice.
(c)
The notice may be delivered to a subscriber via an insert in the subscriber's periodic invoice, through a special mailing, or over an MCS channel clearly designated for the dissemination of such information.
(d)
If the MCS provider chooses to avail itself of the opportunity to provide the notice over the MCS system, on a channel clearly designated for the dissemination of such information, such notice shall be cablecast at least three times every week.
[Ord. No. 135-94, 9-19-1994]
(a)
Within the notice that is required by this chapter, subscribers shall be informed of at least the following billing practices of an MCS provider:
(1)
Billing procedures (including payments necessary to avoid discontinuance of service);
(2)
Payment due and delinquent dates;
(3)
Amount or percentage of any administrative fees and/or late charges, if any;
(4)
Disconnection/reconnection policy;
(5)
Advance billing options;
(6)
Resolution procedures for billing disputes, complaints, and inquiries;
(7)
Refund/credit policy for service interruptions, or uncontracted service;
(8)
Current service rates in a detailed and understandable format;
(9)
Amount of charges for installation or relocation of an MCS provider's facilities and/or equipment; and
(10)
Current schedule and explanation for any billed charges or other non-regularly occurring fees invoiced to subscribers (including service call charges or trip charges).
(b)
Existing subscribers shall be informed of the items listed in Subsection (a) of this section at least once every 12 months.
(c)
Whenever there is a change in an MCS provider's billing practices or payment requirements, all subscribers must be notified in writing at least 30 days before such billing practices or payment requirements become effective.
(d)
In any case where a subscriber requests a cancellation or reduction of service within 30 days after the notification of a scheduled rate or charge adjustment, then the subscriber's liability for service received after the effective date of such changes until the cancellation or reduction of service shall be determined in accordance with the rates or charges (if any) in effect prior to such change.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall provide a subscriber with credit (or where applicable a refund) for one day's service for a service outage or interruption of a separately billed service tier or service cluster that exceeds six hours in length. For a service outage or interruption of a pay-per-view event that exceeds more than 1/4 of the scheduled or projected length of the pay-per-view event, or two hours, whichever is shorter, then the MCS provider shall provide a subscriber with credit for the full amount of the pay-per-view event.
(b)
Force majeure situations do not relieve an MCS from providing credit or refunds, if the force majeure service outage or interruption exceeds 24 hours in length.
(c)
An MCS provider shall use its best efforts to automatically credit or refund any affected subscriber in the case of a system-wide service outage that exceeds the time limits referenced in Subsection (a) or (b) of this section. For purposes of this section, a "system-wide service outage" is a service outage that is caused by the same incident, and that affects three or more subscribers at the same time.
(d)
For non-system-wide service outages, a subscriber must first notify an MCS provider of the service outage. For purposes of determining whether a credit or rebate is due, the start of the non-system-wide service outage shall be from the time that the subscriber first notifies the MCS provider of the service outage.
(e)
In the case of a charge for unsolicited service, an MCS provider shall provide a subscriber with an adjustment or billing credit on the next available periodic invoice. Moreover, in such a case, an MCS provider shall not consider a subscriber delinquent for failure to pay a charge for unsolicited service.
[Ord. No. 135-94, 9-19-1994]
(a)
In those instances in which a subscriber contests the actual amount of a periodic invoice, or the imposition of a charge for a particular multi-channel service or technical service request (such as installation or downgrade), or the amount of an administrative fee and/or late charge, such subscriber shall make the MCS provider aware (either in writing, or verified verbal communication) of such contested amount prior to the multi-channel service being disconnected.
(b)
As noted elsewhere in this chapter, an MCS provider shall not consider a subscriber delinquent for failure to pay a charge for unsolicited service.
(c)
In light of the provisions contained in this section, an MCS provider shall make available an escrow account for subscribers with billing disputes.
(d)
In those instances where a subscriber has notified an MCS provider of a particular billing dispute, the subscriber may deposit the full amount of the contested charge into an MCS provider escrow account until the matter is either administratively or judicially resolved. In cases of multiple billing disputes, then the subscriber must deposit the full amount of each contested charge into an MCS provider escrow account.
(e)
Where, prior to disconnection, a subscriber deposits the full amount of the contested charge into an MCS provider escrow account, the MCS provider may not then disconnect the subscriber during the pendency of the billing dispute. Moreover, after the subscriber deposits the full amount of the contested charge into the escrow account, the subscriber shall not be liable for any further administrative fees and/or late charges that could be connected with the particular contested charge in question.
(f)
Where the subscriber preserves its right to continued service by placing the full amount of the contested charge in an escrow account, the subscriber may thereafter subscribe to additional multi-channel services, such as premium or pay-per-view events, so long as the subscriber adheres to any and all MCS provider imposed rules (such rules being applicable to subscribers in general).
(g)
Upon final resolution of the billing dispute, the money in the escrow account (together with interest, if applicable) shall be distributed to the individual parties in the amount noted by any settlement agreement or administrative order.
(h)
These above-described provisions shall be in addition and supplemental to any provisions contained in the MCS provider's complaint/inquiry resolution policy.
[Ord. No. 135-94, 9-19-1994]
(a)
In order to facilitate the needs of the local customers, an MCS provider shall maintain a customer service office which is:
(1)
Located within the City limits of the City, or no further than one mile outside of the City limits of the City;
(2)
Complemented with adequate parking;
(3)
Accessible to the physically and ambulatory impaired;
(4)
Adequately staffed during business hours to handle the flow of customers; and
(5)
Equipped with up-to-date and properly functioning computer and telephonic equipment, so that all customers may be properly and promptly served.
(b)
The customer service office shall be open at least 36 hours per week (exclusive of holidays).
(c)
Within the 36 hours per week that a customer service office must be open, an MCS provider must provide office hours either on at least two evenings (after 5:00 p.m.) or at least four hours on a Saturday and/or Sunday (if not prohibited by state law).
(d)
The customer service office shall have an adequate and knowledgeable staff in order to handle the vast majority of customer service inquiries, specifically including, but not limited to, billing inquiries, refunds, credits, service outages, equipment service and repair, payment of bills and other charges, and inquiries from disabled or physically impaired customers.
(e)
An MCS provider may install (at its customer service office) an after hours depository in order to collect invoice payments and receive requests for service appointments (including connections and disconnections) after scheduled office hours.
(f)
An MCS provider may install an automated (audio or video) customer assistance device or machine which can handle various types of customer inquiries, so long as the caller has the option and ability at all times to speak with a live representative of the MCS provider.
(g)
Where not prohibited by the state, an MCS provider may install an interactive customer assistance service over one or more multi-channels which can handle various types of customer inquiries.
(h)
An MCS provider may contract with another business or commercial establishment for the sole or primary purpose of collecting subscriber periodic payments and distributing MCS provider authorized promotional, billing, and/or subscriber information and literature.
(i)
Neither the presence of an after hours depository, nor automated customer service device, nor interactive customer service channel, relieves an MCS provider from maintaining the minimal required number of office hours, or adequate CSR staff to handle the service inquiries.
(j)
An MCS provider shall maintain at least one toll-free and/or local telephone number to accommodate both normal business inquiries and to facilitate calls concerning repair of equipment, service outages, and extended interruption of service. During any hours that the customer service office is open, the MCS provider must have, or make available, in-house personnel to address a customer's inquiries. During other hours, a telephone may be manned by an automatic answering device, provided that the use of an answering device or answering service still results in an initial phone response by the MCS provider within 60 minutes, in order to at least determine the extent of the outage, interruption or other customer-related concern.
(k)
A MCS provider shall have adequate staff and/or extension lines (except during special marketing promotion periods, peak billing cycles, and service outages) in order to handle calls and inquiries directed to the general information number, so that the following standards may be met:
(1)
Ninety-five percent of all customer calls received in any 60-day period shall be answered and responded to within four minutes by a representative of the MCS provider, or by a device that is capable of complaint/inquiry resolution; and
(2)
The rate of abandoned calls shall be less than 5% over any 60-day period of time. Abandoned calls shall not include calls in which the caller hangs up within 45 seconds of making the call.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall annually certify to the Council/franchising authority that each CSR has taken and passed an MCS provider implemented course, or attended an on-going or periodic class, or received periodic instruction that is designed to train CSRs to handle their jobs in a courteous, efficient, knowledgeable and responsive manner. Also, the course, class or instruction shall be designed to provide continuing education to CSRs concerning changes in federal, state, or local law, as well as changes in MCS provider customer service policies and practices.
(b)
An MCS provider shall annually certify to the Council/franchising authority that each service technician has taken and passed an MCS provider-implemented course, or attended an on-going or periodic class, or received periodic instruction that is designed to train service technicians to handle their jobs in a courteous, efficient, and responsive manner. Also, the course, class or instruction shall be designed to provide continuing education to service technicians in changes in technology, repair/maintenance procedures and related matters.
(c)
An MCS provider shall maintain records on the certification of every CSR and service technician and shall provide such certification records to the Council/franchising authority upon seven days' request.
(d)
Every CSR and service technician of an MCS provider shall note his or her name (as well as badge or identification number if one is supplied) on each service request or work order that is furnished to a customer. Further, every CSR and service technician of an MCS provider shall identify himself or herself to a customer at the outset of a phone conference, or service call to the residence or business.
(e)
The provisions and requirements of this section extend to all full-time and part-time employees, as well as any subcontractors and independent contractors who perform the tasks of CSRs or service technicians.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall not, as to rules, regulations, rates, charges, provision of service, or use of a provider's facilities and equipment, make, allow or grant any undue preference or advantage to any person, nor subject any person to prejudice or disadvantage on the basis of age, race, creed, color, sex, national origin, handicap, religious affiliation or location of residence.
(b)
Consistent with Section 621(a)(3) of the Cable Act [codified at 47 U.S.C. § 541(a)(3)], MCS providers classified as cable operators shall not deny cable service, or the extension of cable service, to any group of potential residential cable subscribers based on the income of the residents of the local area in which such group resides.
(c)
Except during a switch-over to an upgraded or rebuilt multi-channel system, an MCS provider shall not provide an unequal number of multi-channel services to subscribers within the City. This is not construed to mean that all subscribers must receive the same number of multi-channel services. It simply means that, except in the situation noted above, an MCS provider must offer the same (by number, description, name, hours available) multi-channel services to all subscribers.
(d)
Subsection (a) of this section, however, does not prohibit an MCS provider from offering a promotional or incentive discount rate or charge as long as the rate or charge does not exceed 370 days in length. This subsection does not prohibit an MCS provider from offering special incentive rates, such as one month basic service free if 12 months of basic service are paid in one payment, or within a certain time frame, or similar types of pre-payment discounts.
(e)
Subsection (a) of this section also does not prohibit an MCS provider from denying service based on location of residence, if that residence is outside the parameters for line extension as detailed in a franchise agreement (if applicable).
(f)
Subsection (a) of this section also does not prohibit an MCS provider from denying service to a subscriber who is delinquent in the payment of any periodic service, or special service bill, so long as the requirements for billing disputes and disconnection (as outlined elsewhere in this section) have been satisfied.
(g)
Subsection (a) of this section also does not prohibit an MCS provider from making agreements or entering into multi-channel service agreements with multiple dwelling unit owners (including hotel, motel, and mobile home park owners) to provide multi-channel service under a bulk billing or other type of arrangement.
[Ord. No. 135-94, 9-19-1994]
(b)
An MCS provider shall comply with any, and all, applicable state rules concerning the imposition, retention, and return of security deposits.
(c)
If the state is silent on the security deposit for a particular piece of equipment, then the MCS provider shall be prohibited from charging any security deposit for equipment which exceeds the replacement cost to the MCS provider.
(d)
As a matter of consumer protection, an MCS provider shall be prohibited from charging any security deposit for multi-channel service which exceeds twice the basic monthly rate.
(e)
An MCS provider may charge an appropriate security deposit [consistent with Subsection (d) of this section] in those instances where a customer is reconnected after an involuntary disconnection for non-payment or prior history of unsatisfactory payment. Moreover, an MCS provider may charge a security deposit amounting to as much as four times the replacement cost for equipment in those instances where the customer has previously been cited or caught using MCS provider equipment for unauthorized or illegal purposes.
(f)
An MCS provider shall return a security deposit (together with any interest earned) after the equipment is satisfactorily returned, or the subscriber maintains a satisfactory payment history (which is determined as no payment delinquencies within the preceding twenty-four-month period).
(g)
A customer shall maintain any equipment rented or leased from an MCS provider in good working order, and operate such equipment only in the manner specified by the MCS provider or manufacturer of the equipment.
(h)
A customer shall totally and fully reimburse an MCS provider for any damage or loss to an MCS provider's equipment that is due to the customer's failure to properly maintain and operate such equipment.
(i)
A customer shall be relieved from any responsibility for reimbursing an MCS provider for equipment which malfunctions or does not operate due to a hidden or latent defect in the equipment, or for equipment which fails to operate, or improperly operates due to natural occurrences conditioned by the normal wear and tear of such equipment.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall be required to keep and maintain service inquiry logs, subject to any limitations imposed by the state or federal law, including (for MCS providers classified as cable operators) any subscriber privacy limitations imposed by the Cable Act.
(b)
The purpose of the service inquiry logs is to assist the Council/franchising authority in assessing (in the aggregate) the type, degree, and resolution of customer service requests, inquiries, and complaints.
(c)
At a minimum, the service inquiry logs shall contain the following:
(1)
The time and date of initial receipt of any service request, inquiry, or complaint, together with the time and date of initial response to that service request, inquiry or complaint;
(2)
The nature of the service request, inquiry, or complaint;
(3)
The precise action taken by an MCS provider in order to resolve the service inquiry, request, or complaint;
(4)
Whether the service request, inquiry, or complaint was resolved by allowing a credit or refund of some sort; and
(5)
The area, location, or quadrant of the City where the service request, inquiry, or complaint was generated.
(d)
In addition to any other right of inspection that the Council/franchising authority may possess, it shall have the right to review and inspect a compilation of such logs. However, the Council/franchising authority shall not have the right of access, review, or inspection for any service inquiry logs or any information contained within service inquiry logs that is otherwise protected from access, review, or inspection by federal or state law.
(e)
The term "service inquiry logs" as used in this section shall not include data or entries placed in logs related to scheduled installations.
[Ord. No. 135-94, 9-19-1994]
(a)
If at any time an MCS provider (in furtherance of its right to construct, operate, and maintain a multi-channel system) shall disturb the yard, residence, or other real or personal property of a subscriber, such MCS provider shall ensure that the subscriber's yard, residence, or other personal property is returned, replaced, and/or restored to a condition comparable to that which existed prior to the commencement of the work.
(b)
The costs associated with both the disturbance and the return, replacement, and/or restoration shall be borne by the MCS provider. This subsection also requires the MCS provider to reimburse a subscriber or private property owner for any actual physical damage caused by the MCS provider, its subcontractor, or its independent contractor in connection with the disturbance of a subscriber's or private property owner's property.
[Ord. No. 135-94, 9-19-1994]
(a)
Except in the case of force majeure, or an appointment scheduled with the mutual consent of a subscriber, an MCS provider shall respond to the service inquiries, requests, and complaints of subscribers within such MCS provider's normal business or service hours, and within the time schedules detailed in Subsections (c) through (g) of this section. The MCS provider shall be considered in compliance by the Council/franchising authority if the standards of service outlined in Subsections (c) through (g) are met or exceeded at least 95% of the time over a calendar month. Conversely, the MCS provider shall be considered in major noncompliance (absent force majeure or mutually scheduled appointments) if the standards of service outlined in Subsections (c) through (g) of this section are not met or exceeded at least 95% of the time over any four calendar months within a calendar year, or any five months within a fifteen-month period.
(b)
Moreover, except in emergency situations, an MCS provider shall inform the customer that there is a choice as to whether the service call is scheduled for the morning (8:00 a.m. to 12:00 noon), afternoon (12:00 noon to 4:00 p.m.), or evening (4:00 p.m. to 8:00 p.m. or later) hours. If the service call has to be cancelled or rearranged by the MCS provider, then the MCS provider shall make every effort to notify the customer as soon as possible, and shall reschedule the service call for a time within 24 hours of the cancellation.
(c)
In the case of a service outage or a "blank" or "no picture" situation at any given level of billing or service (except for pay-per-view events), an MCS provider shall respond and make repairs as are necessary to return the multi-channel service within six hours from the time the MCS provider first received notification of the "blank" or "no picture" situation.
(d)
In the case of a signal or service interruption (such being defined as visually discernible degradation in picture or sound), an MCS provider shall make its best efforts to respond and remedy the problem the same day, but in no case later than 24 hours or one working day from the time the MCS provider first received notification of the signal or service interruption.
(e)
In the case of a defective, improperly operating, or non-operating piece of equipment, an MCS provider shall make its best efforts to respond and remedy the problem the same day, but in no case will the response be later than 24 hours or one working day, and shall make repairs as are necessary to correct the problem within 36 hours from the time the MCS provider first received notification of the defective, improperly operating, or non-operating piece of equipment.
(f)
In no case shall a subscriber's service request or inquiry go unresponded or unattended to for more than 12 hours from the time the MCS provider first received notification of the service inquiry or request. Moreover, except in force majeure situations, all requests and inquiries shall be handled or corrected within 36 hours from the time the MCS provider first received notification. If a cancellation of a service call occurs, then the MCS provider shall reschedule the call in a manner consistent with the guidelines expressed in Subsection (a) of this section.
(g)
In case of a dispute concerning the precise time that the MCS provider received notification, or the precise circumstances surrounding the MCS provider receiving the notification, or whether notification was received at all, the Council/franchising authority reserves the right and authority to settle such a dispute.
[Ord. No. 135-94, 9-19-1994]
(a)
Except in case of force majeure, an MCS provider shall, at all times, have access to, and be able to secure, sufficient maintenance and repair parts and equipment for the MCS system, so that the MCS provider can respond to, and correct, all subscriber service interruptions within the time periods specified in this chapter.
(b)
Having access to and being able to secure sufficient maintenance and repair parts and equipment is necessary to promptly restore a subscriber's multi-channel service and avoid delays caused by having to obtain needed parts and equipment.
(c)
Except in case of force majeure, an MCS provider shall have sufficient maintenance and repair personnel so that the MCS provider can respond to, and correct, subscriber service interruptions within the time periods specified in this chapter.
(d)
Notwithstanding the other requirements and provisions contained in this section, an MCS provider shall maintain at least one service technician on call 24 hours per day.
[Ord. No. 135-94, 9-19-1994]
(a)
A subscriber shall not be considered delinquent in payment until at least:
(b)
Before disconnection of a subscriber's multi-channel service (either physically or electronically) takes place, the following must occur:
(1)
The subscriber must in fact be delinquent in payment for multi-channel service; and
(2)
At least 48 hours have elapsed after a separate written notice of impending disconnection has been personally served upon the subscriber or deposited at his or her residence; or
(3)
At least 96 hours have elapsed after mailing a separate written notice of impending disconnection to the subscriber; or
(4)
At least 48 hours have elapsed after the subscriber has either signed for, or refused to accept, a separate written notice of impending disconnection.
(c)
The written notice of disconnection must expressly and clearly state the amount that is owed by the subscriber to an MCS provider, the minimum amount required to be paid to avoid disconnection, and the date and place where such payment must be made.
(d)
Disconnection of service must occur both on a normal service day, and within normal business hours of an MCS provider, unless the subscriber is given the opportunity to pay the full amount of the past due account.
(e)
An MCS provider who physically retrieves its equipment (including, but not limited to, converter, remote control unit, or digital audio tuner) from a subscriber must do so within both a normal service day and normal service hours of an MCS provider, unless otherwise agreed to by the subscriber.
(f)
Where an MCS provider imposes an administrative fee for a payment delinquency it shall nevertheless be treated as a late charge and may not be any more than the state allows for late charges (if the state indeed has a provision covering the maximum permitted late charges). If the state is silent on such a late charge and/or administrative fee, then the maximum permitted late charge and/or administrative fee is 12% of the payment delinquency.
(g)
A subscriber shall not be considered delinquent in such case where it has notified the MCS provider of a billing dispute and/or contested charge prior to disconnection, and the subscriber has deposited the full amount of the contested charge into an MCS provider escrow account. Moreover, if a late charge and/or administrative charge is assessed prior to notification of the contested charge, or is in fact the contested charge, then such late charge and/or administrative fee may not be greater than the state-permitted maximum, or 12% (if no state-imposed maximum).
(h)
Receipt of a "bad check" from a subscriber, in response to a written notice of disconnection, does not constitute payment, and the affected MCS provider need not give the subscriber further notice prior to disconnecting multi-channel service.
(i)
An MCS provider may add a reasonable collection charge to the subscriber's bill if the applicable provisions of this chapter, and any applicable state regulation, are followed.
(j)
Any refund due a subscriber after such a disconnection shall be made within 60 days of the disconnection for non-payment.
[Ord. No. 135-94, 9-19-1994]
(a)
At any time, a subscriber may request that a particular service tier, menu-driven program/service, premium channel, informational service, or the entire multi-channel service be disconnected.
(b)
Where provided by an MCS provider, a subscriber may request a downgrade from a particular level of service to a less comprehensive level of service, or a less expensive level of service.
(c)
From the date that a subscriber requests either a disconnection or downgrade, the MCS provider shall have 72 hours or three service days, whichever is longer, to disconnect or downgrade the service tier, pay channel, premium channel, informational service, or entire multi-channel service. In the event that an MCS provider does not disconnect or downgrade service within said period, a subscriber's obligation to pay for such service shall cease, or in the case of a downgrade, a subscriber's obligation to pay for the more comprehensive and/or higher priced service shall cease as of the end of such period.
(d)
For a service tier, a la carte or menu-driven service, premium channel or informational service which is voluntarily disconnected, a subscriber shall pay a pro rata share of the monthly rate for such service tier, a la carte or menu-driven service, premium channel or informational service.
(e)
Once a valid connection to an a la carte or menu-driven program or a pay-per-view event occurs, then the MCS provider may collect the full advertised or quoted rate, should the customer then attempt to disconnect the a la carte or menu-driven program or pay-per-view event.
(f)
For MCS providers classified as cable operators, any charge or billing imposed on a subscriber as a result of a downgrade by such MCS providers shall be no more than the maximum permitted by FCC rules and regulations. For other MCS providers, the Council/franchising authority reserves the right to approve any charge or billing that would be imposed on a subscriber as a result of a downgrade in service.
(g)
If, however, an MCS provider's equipment is or has been damaged by a subscriber, prior to such disconnection, then the MCS provider may charge the subscriber the entire cost of such damage, provided that the MCS provider notifies the subscriber within 30 days of the disconnection. A subscriber shall not be required to pay for equipment failure if the circumstances fall within the normal wear and tear or acts of nature guidelines established in this chapter.
(h)
Any refund due a subscriber after voluntary disconnection and/or downgrade shall be made within 60 days after such disconnection.
(i)
In no event will this section be viewed as abridging the rights and remedies afforded by the subscriber complaint/inquiry resolution process outlined in this chapter.
[Ord. No. 135-94, 9-19-1994]
An MCS provider shall abide by any, and all, subscriber privacy rules or regulations of the federal or state government.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider is required to develop a comprehensive complaint/inquiry resolution policy which adheres to this chapter, and any rules or regulations promulgated hereto.
(b)
An MCS provider's complaint/inquiry resolution policy shall be reduced to writing, and such policy shall be available upon request, to any person. In any event, a subscriber shall receive notice of such policy in the manner that is prescribed by this chapter, and any state rules and regulations.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider may not propose to abandon, withdraw, or cease to provide multi-channel service to any, or all, subscribers within the City without the prior written consent of the Council/franchising authority. Likewise, an MCS provider may not actually abandon, withdraw, or cease to provide multi-channel service to any, or all, subscribers within the City without the prior written consent of the Council/franchising authority.
(b)
If an MCS provider does so without such prior written consent, then such action may be deemed a major violation of this chapter, and the MCS provider may be fined and/or punished in the manner prescribed by this chapter (including, where applicable, subject default and revocation of a franchise).
[Ord. No. 135-94, 9-19-1994]
(a)
The City Council does not intend to prohibit the erection or continued use of individual television antennas within the City so long as the individual television antennas conform to any, and all, applicable zoning and/or land use regulations. Consequently, no person shall be required to receive multi-channel service, or to physically connect to a multi-channel system.
(b)
No person shall be penalized or fined (through either a home sales contract, deed containing restrictive covenants, or other type of agreement) for failing or refusing to receive multi-channel service, or failing or refusing to physically connect to a multi-channel system.
[Ord. No. 135-94, 9-19-1994]
In order to establish minimum uniform standards, any MCS provider shall adhere to the following minimal construction schedule and construction-related requirements:
(1)
Construct, install, maintain, and repair the multi-channel system in accordance with this chapter;
(2)
Use streets and public ways as set forth in this chapter;
(3)
Where applicable, remove franchise property from public streets, as set forth in this chapter;
(4)
Adopt the construction standards, as set forth in this chapter;
(5)
Adopt the system expansion standards, as set forth in this chapter;
(6)
Adopt the construction schedule as referred to in this chapter;
(7)
Abide by, and act in strict accordance with, all current technical codes and standards customary to the multi-channel industry, including construction, fire, safety, health, and zoning codes that are adopted by the City, or the state, or the United States, as noted in this chapter; and
(8)
Maintain all permits and licenses, as noted in this chapter.
[Ord. No. 135-94, 9-19-1994]
During any phase of construction, installation, maintenance, and repair of the multi-channel system, the MCS provider shall use materials of good and durable quality and all such work shall be performed in a safe, thorough, and reliable manner.
[Ord. No. 135-94, 9-19-1994]
(a)
All wires, conduits, cable (coaxial, fiber, or functional equivalent), and other property and facilities of an MCS provider shall be so located, constructed, installed, and maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic and travel upon the streets, rights-of-way, easements, and public ways of the City.
(b)
In the event an MCS provider's system creates a hazardous or unsafe condition or an unreasonable interference with property, such MCS provider shall voluntarily, or upon the request of the Council/franchising authority, remove or modify that part of the system to eliminate such condition from the subject property.
(c)
An MCS provider shall not place equipment where it will interfere with the rights of property owners or with gas, electric or telephone fixtures, or with water hydrants or mains, or with wastewater lift stations, any traffic control system or any other service or facility that benefits the City's or its residents' health, safety, or welfare.
(d)
An MCS provider, at either its own expense or that of a private contractor, shall protect rights-of-way and easements, and support or temporarily disconnect or relocate in the same street or other public way any property of such MCS provider when necessitated by reason of:
(1)
Traffic conditions;
(2)
Public safety;
(3)
Temporary or permanent street closing;
(4)
Street construction or resurfacing;
(5)
A change or establishment of street grade;
(6)
Installation of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines, and any traffic control system; or
(7)
Any improvement, construction or repair related to the City's or its residents' health, safety, or welfare.
(e)
It shall be the responsibility of an MCS provider (acting alone or in conjunction with another person) to locate and mark or otherwise visibly indicate and alert others to the location of its underground cable (coaxial, fiber or functional equivalent) before employees, agents, or independent contractors of any entity perform work in the marked-off area.
(f)
An MCS provider shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the cable wires to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and such MCS provider may require payment in advance. The affected MCS provider shall be given not less than 14 days' notice of a contemplated move to arrange for temporary wire changes.
[Ord. No. 135-94, 9-19-1994]
(a)
This section is applicable to any MCS provider required to maintain a franchise to operate within the City.
(b)
Whenever the following occurs, unless the City or another MCS provider uses such multi-channel system under the continuity provisions outlined in this chapter, the affected franchised MCS provider shall, at its expense, promptly remove its multi-channel system property, or any abandoned portion of the system, from the streets, public ways, and private property located within the City:
(1)
A franchised MCS provider ceases to operate all, or part, of the multi-channel system for a continuous period of six months;
(2)
A franchised MCS provider ceases and fails to construct the multi-channel system outlined in an initial application, a proposal for renewal, the renewal franchise agreement, or an amended franchise agreement;
(3)
The Council/franchising authority elects not to renew the franchise pursuant to the provisions set forth in this chapter; or
(4)
The franchised MCS provider's franchise is revoked pursuant to the provisions set forth in this chapter.
(c)
If not removed voluntarily by a franchised MCS provider, then the Council/franchising authority may notify such franchised MCS provider that if removal of the property is not accomplished within 300 days, or substantial progress towards removal is not made within 240 days, then the Council/franchising authority may direct its officials or representatives to remove such franchised MCS provider's system property at that franchised MCS provider's expense. The performance and/or construction bond, irrevocable letter of credit, cash deposit, or full faith and credit guarantee required as set forth in this chapter shall be available to pay for such work.
(d)
If officials or representatives of the City remove a franchised MCS provider's system property, and such franchised MCS provider does not claim the property within 90 days of its removal, then the City may take whatever steps are available under state law to declare the property surplus and sell it, with the proceeds of such sale (if permitted by state law) going to the City.
(e)
When such franchised MCS provider removes its multi-channel system property from the streets, public ways, and private property located within the City, the franchised MCS provider shall, at its own expense, and in a manner approved by the Council/franchising authority, replace and restore such public or private property to a condition comparable to that which existed before the work causing the disturbance was done.
[Ord. No. 135-94, 9-19-1994]
(a)
Methods of construction, installation, maintenance, and repair of any multi-channel system shall comply with the most current editions of the National Electrical Safety Code and the National Electric Code as affects the construction, installation, and maintenance of electrical supply and communication lines and attachments and supports. To the extent that these are inconsistent with other provisions of a franchise, or state or local law, such state law shall apply unless the state allows the local law to control.
(b)
All construction, installation, maintenance, and repair shall treat the aesthetics of the property as a priority, shall not substantially affect the appearance or the integrity of the structure, and shall not be installed on the bias across the property or side of a residence or other structure without the property owner's permission.
(c)
All underground drops shall follow (to the greatest extent possible) property lines, and cross property only at right angles, unless otherwise permitted by the property owner, or required due to the physical characteristics of the subsurface, or required under City, county, state, or federal rules. Underground installations shall be constructed in accordance with the specifications and requirements of the City and the National Electric Safety Code.
(d)
For existing multi-channel system construction, installation, and repair, the provisions of Subsection (c) of this section shall apply only at the time a scheduled upgrade or rebuild of the MCS provider's multi-channel system is actually commenced. For newly served areas, the provisions of Subsection (c) of this section shall apply at the time of initial construction and/or installation.
(e)
In instances where either electrical or telephone utilities install wire or cable aerially, the MCS provider may construct its multi-channel system aerially, unless otherwise required by state law.
[Ord. No. 135-94, 9-19-1994]
(a)
This section is applicable to any MCS provider required to maintain a franchise to operate within the City.
(b)
A franchised MCS provider's construction schedule for the multi-channel system shall be detailed in the franchise agreement in a form and format determined by the Council/franchising authority.
(c)
A franchised MCS provider that does not abide by the system construction schedule shall be subject to any and all applicable penalties and remedies, including default and/or revocation.
[Ord. No. 135-94, 9-19-1994]
For franchised MCS providers the franchise agreement between the City and/or Council/franchising authority and the franchised MCS provider shall contain a system expansion schedule for any area not provided (as of the date of the franchise agreement) multi-channel service.
[Ord. No. 135-94, 9-19-1994]
An MCS provider shall obtain, at its own expense, all permits and licenses required by local law, rule, regulation, or ordinance, and maintain the same, in full force and effect, for as long as required by the City, Council/franchising authority or other appropriate governmental entity or agency.
[Ord. No. 135-94, 9-19-1994]
It shall be the responsibility of any MCS provider to comply with the most current FCC technical standards.
[Ord. No. 135-94, 9-19-1994]
(a)
In order to verify that an MCS provider constructed and maintained the multi-channel system in the manner required by this chapter, and conducted the various performance, technical integrity [including cumulative leakage (CLI)], preventive maintenance, and safety tests required by federal, state, and local laws, the City and, where appropriate, the Council/franchising authority reserves the right to inspect all facets of an MCS provider's construction, as well as to inspect documents related to construction, and inspect test results related to performance, technical integrity, preventive maintenance, and safety.
(b)
The City shall pay for all of its costs associated with such an inspection, except for those circumstances occasioned by an MCS provider's refusal to provide necessary information (such as schematic drawings or as-built maps), or occasioned by the repeated failure to construct, install, maintain, repair, rebuild, or upgrade, in the manner specified and required by this chapter, or where applicable, a franchise agreement. In such instances, the MCS provider shall pay for such costs incurred by the City that are caused by the MCS provider's refusal to supply necessary information, or repeated failure to abide by the rules.
[Ord. No. 135-94, 9-19-1994]
(a)
The Council/franchising authority requires that the MCS provider's construction, operation, and maintenance of the multi-channel system meet certain threshold safety levels which are designed to protect the public and lessen the likelihood of interruption of multi-channel service.
(b)
Consequently, at a minimum, an MCS provider shall adopt the following safety requirements:
(1)
Emergency alert override activation in the manner set forth in this chapter;
(2)
Minimum standby power as noted in this chapter;
(3)
Implementing a periodic preventative maintenance program, as set forth in this chapter;
(4)
Comply with, and abide by, all FCC rules and regulations concerning maximum cumulative leakage index (CLI) limits; and
(5)
Comply with, and abide by, any construction, safety, health, or fire codes, as noted in this chapter.
[Ord. No. 135-94, 9-19-1994]
(a)
In order that subscribers may be alerted in the event of an impending, imminent or actual, natural or man-made disaster emergency, all MCS providers shall ensure that the multi-channel system providing multi-channel service to all, or part, of the City is designed so as to permit an authorized official of the City to override the audio portion of all channels, by touch-tone phone (or functional equivalent), from any location.
(b)
In addition to any other requirements listed in this section, an MCS provider shall:
(1)
Designate a channel which will be used for disaster emergency broadcasts of both audio and video (this channel need not be solely used for emergency broadcasts, and may in fact be used for any lawful purpose);
(2)
Inform subscribers of the designated emergency channel on a periodic basis (not less than once a day);
(3)
Maintain all channel video blanking capability to facilitate the needs of hearing- and sight-impaired customers;
(4)
Test the disaster emergency override system not less than once a month, and remedy any problems or operational deficiencies immediately;
(5)
Cooperate with the City on the use and operation of the emergency alert override system; and
(6)
Develop a plan (with the City's concurrence) to provide continuity of multi-channel service and response to service calls in the event of an emergency.
(c)
As one method of providing continuity of multi-channel services in the event of a natural or man-made disaster emergency, an MCS provider shall, unless exempted by the Council/franchising authority, have the capacity for two-hour automatically activated standby power on all trunk and feeder cable, and all head ends, hubs, and receive sites associated with the distribution of cable service to and throughout the City.
[Ord. No. 135-94, 9-19-1994]
(a)
It shall be the duty of an MCS provider to devise and implement a periodic preventative maintenance program for the multi-channel system in order to ensure that there is no material degradation of the multi-channel system that would affect the citizens' health, safety, and welfare, or negatively affect the quality of multi-channel services being provided.
(b)
Before the MCS provider implements such a program, it shall provide a copy of such program to the Council/franchising authority.
(c)
Although not exhaustive, the following areas shall be included in a preventive maintenance program, and subsequent report:
(1)
Daily inspection, and adjustment if necessary, of the signal quality of each channel;
(2)
Daily scan, and adjustment if necessary, of carrier levels with spectrum analyzer;
(3)
Daily logging of any, and all, adjustments made to the head end, antenna tower, or distribution system;
(4)
Daily monitoring, and logging, of signal leakage, and repair if necessary, to ensure that the multi-channel system is within FCC allowed levels;
(5)
Inspection of drops as an integral part of every service call, and schedule for replacement, if necessary;
(6)
Inspection and recordation of signal levels at the time of each service call;
(7)
Weekly monitoring, and adjustment if necessary, of head end audio and video carrier levels;
(8)
Weekly monitoring, and adjustment if necessary, of head end video cipher AGC levels;
(9)
Weekly monitoring, and adjustment if necessary, of satellite receiver input carrier noise;
(10)
Monthly monitoring, and adjustment if necessary, of head end audio and video modulation levels;
(12)
Monthly monitoring, and adjustment if necessary, of head end scrambler levels;
(13)
Monthly testing, and repair if necessary, of the emergency alert override system;
(14)
Monthly inspection, and repair if necessary, of 1/3 of all standby power supplies;
(15)
Semiannual monitoring, and adjustment if necessary, of head end radio frequency (RF) input levels to off-air processors;
(17)
Semiannual inspections, and repair and/or recalibration if necessary, of all in-house and field test or measuring equipment;
(19)
Annual testing for determining cumulative leakage index (CLI); and
(21)
Where required by local or state law, annual inspection and repair (if necessary) of all MCS provider owned or leased vehicles.
(d)
Forty-five days after each calendar quarter, an MCS provider shall notify the Council/franchising authority of the preventive maintenance information available for that calendar quarter, and that such information is available for inspection, examination, and review by authorized personnel upon five days' notice.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider shall construct, operate, maintain, repair, remove, replace, or restore the multi-channel system in strict compliance with all current technical codes adopted by the City, the state, or the United States.
(b)
The codes referred to are technical codes that are standard and customary to the multi-channel industry, including, but not limited to, construction, fire and safety, health, and zoning codes.
[Ord. No. 135-94, 9-19-1994]
(a)
This section is applicable to any licensed but unfranchised MCS provider, and to any MCS provider who has had its franchise ruled unconstitutional, unenforceable, or invalid. For all franchised MCS providers the provisions concerning franchise fees shall be applicable.
(b)
Where not specifically prohibited by federal or state law, and as an alternative to the imposition of a franchise fee as set forth in this chapter, the Council/franchising authority may impose, extract, and collect a charge from an affected MCS provider for the use by such provider of the streets, rights-of-way, easements, and public ways of the City.
(c)
Such an alternative user charge shall be based on the value of the public rights-of-way being used by the affected MCS provider. However, in no event shall the alternative user charge exceed 5% of the affected MCS provider's gross revenue for the reporting period.
(d)
An alternative user charge is adopted in order to receive fair compensation for the affected MCS provider's use of the public streets and public ways if such compensation cannot be obtained by imposing a flat percentage fee on such MCS provider's annual gross revenue. However, an affected MCS provider may agree to an alternative charge that is based on a flat percentage of gross revenue, as long as that charge does not exceed 5% of an affected MCS provider's annual gross revenue.
(e)
Also, recognizing that an alternative user charge may affect a franchised MCS provider, please note that the franchise agreement may contain express language which details a different method or manner to handle a situation in which franchise fees as historically calculated (as a percentage of gross revenue) are ruled unconstitutional, or unenforceable, in order to protect and preserve the City's source of revenue and compensation for the use of the public rights-of-way.
(f)
It is expressly understood that a franchise fee and an alternative user charge will not be imposed on the same MCS provider at the same time, for the same period.
(g)
An affected MCS provider shall at no time be charged or obligated to pay an alternative user charge that exceeds 5% of such provider's gross revenue (as defined by this chapter) for any particular reporting period. In the event that the alternative user charge does exceed 5% of the gross revenue, then such alternative user charge shall be reduced to reflect an amount not greater than the 5% cap.
(h)
An affected MCS provider shall pay 25% of the alternative user charge at the end of every three months.
[Ord. No. 135-94, 9-19-1994]
(a)
Except as provided in Subsections (b) and (c) of this section, no person or MCS provider shall be permitted to construct, operate or maintain a multi-channel system which requires the laying or positioning or use of cable (coaxial, fiber or functional equivalent) across the rights-of-way of the City without having first obtained an MCS franchise which is then in effect.
(b)
No franchise shall be required for either the City or any local or municipal authority affiliated with it to operate as an MCS provider.
(c)
If, as a result of annexation (either previous to, or subsequent to, the effective date of this chapter), a previously unfranchised MCS provider comes under the jurisdiction of the City, then such MCS provider shall not be required to obtain a franchise, or to enter into a franchise agreement, unless both permitted by state law, and the Council/franchising authority expressly gives written notification to the MCS provider that it is required to obtain a franchise.
(d)
Where a person or MCS provider is required by the Council/franchising authority to obtain a franchise, the Council/franchising authority shall notify the person or MCS provider, in writing, within 30 days of the Council/franchising authority's formal action.
(e)
After receipt of notification, the affected person or MCS provider shall have 90 days in which to submit an application or proposal as required by the Council/franchising authority. The MCS provider's application will be processed in accordance with applicable state or local law.
[Ord. No. 135-94, 9-19-1994]
(a)
Consistent with Section 621(a)(1) of the Cable Act (codified at 47 U.S.C. § 541), the Council/franchising authority may award one or more nonexclusive multi-channel service franchises within its geographical limits.
(b)
A franchised MCS provider shall be selected as part of a public proceeding and hearing which affords due process to both the Council/franchising authority and the applicant, and which is in accordance with any applicable federal or state laws.
[Ord. No. 135-94, 9-19-1994]
(a)
An MCS provider may not lay or use any cable (coaxial, fiber, or functional equivalent) until the franchise agreement is fully executed and is in effect.
(b)
A franchise agreement shall be sufficiently detailed to clearly delineate the rights and duties of the parties concerned.
(c)
At a minimum, a franchise agreement shall contain provisions for the following:
(1)
A detailed definition of "gross revenue" in order to determine what revenues are subject to any franchise fee or alternative user charge;
(2)
The term or duration of the franchise;
(3)
Indemnity and hold harmless clauses;
(4)
Insurance;
(5)
Performance and completion bonds or security deposits;
(6)
Construction, upgrade or rebuild schedule;
(7)
Compensation, including franchise fees;
(8)
Continuity of multi-channel programming service;
(9)
Assignment of an existing franchise;
(10)
Repeal of prior inconsistent franchise agreements;
(11)
Severability;
(12)
Force majeure;
(13)
The law that governs the franchise agreement;
(14)
Any exemptions or relief from this chapter granted, or any ordinance clarifications noted with respect to the MCS provider's operation of a franchised multi-channel system; and
(15)
An effective date.
[Ord. No. 135-94, 9-19-1994]
(a)
Upon an award of a franchise, in accordance with the terms of such franchise agreement, an MCS provider required to obtain and maintain a franchise may construct, erect, install, maintain, operate, repair, replace, remove, or restore a multi-channel system within the geographical limits set forth in the franchise agreement.
(b)
The franchised multi-channel system may be located in, upon, along, across, over, and under the streets, rights-of-way, easements, and public ways of the City.
(c)
A franchised MCS provider shall be responsible for obtaining any required easements for private property (including privately owned utility or streetlight poles).
(d)
A franchised MCS provider, through a separate pole or utility easement agreement with an affected utility, may locate the multi-channel system on, or within, the property of such utility company. This provision specifically includes MCS providers classified as cable operators.
[Ord. No. 135-94, 9-19-1994]
(a)
The term of an initial MCS franchise shall not exceed 15 years from the date that a franchise agreement is approved by the Council/franchising authority (on behalf of the City) and executed by authorized individuals of both the City and the affected MCS provider.
(b)
The term of a renewal franchise shall be for a period not less than four years nor more than 15 years from the date that a franchise renewal agreement is both approved by the Council/franchising authority (on behalf of the City) and executed by both the Mayor and the affected MCS provider.
(c)
If an initial franchise or renewal franchise is for a period of six years or less, then the Council/franchising authority shall set forth the reasons for granting the shorter franchise, in the franchise agreement or elsewhere.
[Ord. No. 135-94, 9-19-1994]
(a)
The Council/franchising authority may develop rules and regulations with respect to the submission and processing of initial applications for a franchise. Such rules and regulations shall primarily be aimed at determining the legal, financial, technical, and character qualifications of the applicant for a franchise.
(b)
Unless prohibited by the state, an applicant shall pay an initial application fee which shall be no greater than the administrative and consulting costs associated with processing an initial application for a franchise. The total application fee must be paid, unless waived by the Council/franchising authority. The total initial application fee must be paid (or waived) prior to the Council/franchising authority's formal action on the applicant's request for a franchise.
[Ord. No. 135-94, 9-19-1994]
(a)
Any franchised MCS provider (specifically including any MCS provider classified as a cable operator) awarded a franchise or renewal franchise after the date this chapter becomes effective shall pay to the City, for the privilege and use of the streets, rights-of-way, easements, and public ways, and other facilities of the City in the operation of the multi-channel system, a sum not to exceed 5% of the annual gross revenue of such franchised MCS provider. A franchise fee may be based on subscriber and/or nonsubscriber revenues.
(b)
If the FCC, Congress or other governmental entity with authority over multi-channel service ever allows a governmental entity to increase the franchise fee beyond 5%, then that governmental entity shall have the authority to increase the franchise fee to the maximum percentage allowable.
(c)
Franchised MCS providers shall pass through to subscribers the amount of any decrease in a franchise fee.
(d)
A franchised MCS provider shall file with the Council/franchising authority, within 45 days after the expiration of each of the franchised MCS provider's fiscal quarters, a detailed financial and revenue statement clearly showing the franchise fee due for the preceding quarter together with the bases of the calculations thereof. Such statement shall be certified by a certified public accountant or officer of a franchised MCS provider attesting to the accuracy, completeness, and veracity of the revenue figures. Such statement shall be in the form and format determined by the Council/franchising authority and shall include revenue from whatever source directly or indirectly derived from, or allowed, or caused to be derived from, or applicable to the operation of the multi-channel system, or the provision of any service by or using the multi-channel system. Revenue will be reported by service category, type, and level showing computations and using incremental billing rates for all sources, levels, tiers, clusters, types of service and other revenue sources by kind and type.
(e)
Payment of the quarterly portion of the franchise fee shall be rendered to the Council/franchising authority at the time the financial and revenue statement is filed.
(f)
In the event that payment is not made by the due date then such franchised MCS provider may be declared in default of the franchise, and should the amount owed remain unpaid for an additional 60 days, then the franchise may be revoked, terminated, or cancelled as noted elsewhere in this chapter.
(g)
The Council/franchising authority reserves the right to audit a franchised MCS provider's books, if the Council/franchising authority deems it necessary. If such audit discovers an underpayment of franchise fees of greater than 2% of the actual amount owed, then the affected franchised MCS provider shall reimburse the City for the cost of such audit (unless such cost is waived by the Council/franchising authority). It is specifically understood that the right of audit and recomputation of any and all amounts paid under a franchise fee shall always be accorded to the Council/franchising authority.
(h)
If an audit, or other research, discovers that franchise fees have been either underpaid or not paid for a period exceeding six months from the original due date, then the Council/franchising authority may seek full recovery of the underpaid or non-paid fees, plus interest, not to exceed 15% per year or the maximum allowable under state law (whichever is lesser).
(i)
All annual reports due and pertaining to the payment of franchise fees will be certified by an officer of the franchised MCS provider and will be provided in the form, format and detail applicable to quarterly reports under Subsection (d) above. Such provider shall maintain records used in the preparation of said reports, to be produced in their originality and totality upon request or demand by the Council/franchising authority.
(j)
No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this chapter, or for any other performance or obligation of a franchised MCS provider hereunder.
(k)
Payments of compensation made by a franchised MCS provider to the City, pursuant to the provisions of this chapter, shall be considered in addition to, and exclusive of, any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect, or subsequently adopted.
(l)
A franchise fee does not include any items excluded by Section 622(g)(2)(D) of the Cable Act [codified at 47 U.S.C. § 542(g)(2)(D)].
(m)
Nothing in this section shall be construed to limit the authority of the Council/franchising authority to impose a fee or other assessment of any kind on any person (other than a franchised MCS provider) with respect to multi-channel service or other programming or communications service provided by such person over a multi-channel system for which charges are assessed to subscribers but not received by a franchised MCS provider. For purposes of illustration only, this subsection shall include the situation(s) where a premium service directly bills a subscriber, or the franchised MCS provider acts as collection agent for a premium service billing directly to a subscriber, or where a person leases a channel for commercial use and sells advertising or goods on that channel, and receives the money directly or through a third party.
(n)
For any twelve-month period, the fees paid by any person subject to Subsection (m) of this section who provides any such multi-channel service shall not exceed 5% of such person's gross revenue, or such higher percentage as may be authorized by the FCC, Congress, or other governmental entity, derived in such period from the provision of such service over the multi-channel system.
(o)
If at any time the highest court of the nation, or the highest court of the state, invalidates, voids, or rules as unconstitutional the concept of franchise fees, then the Council/franchising authority may impose an alternative user charge on the franchised MCS provider, as allowed in this chapter.
(p)
In light of Subsection (o) of this section, the franchise agreement may contain express language which permits a different method or manner for collection of franchise fees should the applicable provision of the franchise agreement be ruled unconstitutional or unenforceable, so that the City's source of revenue and compensation for the use of the public right-of-way may be protected.
[Ord. No. 135-94, 9-19-1994]
(a)
There shall be no assignment of a franchised MCS provider's franchise in whole, or in part, without the prior express written approval of the Council/franchising authority.
(b)
Except as noted in Subsection (l) of this section, any assignment without such prior written consent shall constitute a default of such franchise which may subject a franchised MCS provider's franchise to revocation.
(c)
At least 120 days before such a proposed assignment of an MCS provider's franchise is scheduled to become effective, such franchised MCS provider shall petition in writing for such a proposed assignment. It is specifically noted that the franchised MCS provider shall submit to the Council/franchising authority (concurrently with submission of its written petition) an FCC 394 Form (or successor form) together with any other information or documentation required by the state or federal government (including the FCC) and the information referenced in Subsections (g) and (h) of this section.
(d)
The Council/franchising authority will not unreasonably withhold its consent to such an assignment. However, in evaluating the petition for assignment, transfer, or sale, the Council/franchising authority shall undertake a technical inspection and audit of the system to determine whether the franchised multi-channel system complies with all applicable technical and safety codes, as well as complies with and operates within the construction and construction-related practices set forth in this chapter. Also, the technical inspection and audit is designed to determine the technical integrity and stability of the present multi-channel system.
(e)
The Council/franchising authority shall undertake the technical inspection no sooner than 15 days after receiving the petition for consent, and the Council/franchising authority shall receive the technical inspection and audit report at least 30 days before the proposed multi-channel system assignment, transfer or sale is to occur.
(f)
Should the Council/franchising authority determine (as a result of the technical inspection and audit) that the multi-channel system does not comply with federal, state, or local standards, then the current franchised MCS provider shall be provided with an opportunity to correct or cure the area of noncompliance or operational deficiency. In the alternative, the Council/franchising authority may work with both the current and proposed MCS providers to cure the area of noncompliance or operational deficiency.
(g)
If the franchised MCS provider has not previously supplied the Council/franchising authority with certain operational reports and data, then the franchised MCS provider shall submit the following reports at the time it submits its FCC Form 394:
(1)
FCC Form 395-A relating to equal employment opportunity, and fair contracting policies;
(2)
FCC Form 320 concerning cumulative leakage index (CLI);
(3)
Periodic revenue statements in the form and format referenced to in this chapter;
(4)
Preventive maintenance reports in the form and degree referenced to in this chapter; and
(5)
Subscriber logs in the form and format referenced to in this chapter.
(h)
At the time the franchised MCS provider submits its written petition, it shall also submit a copy of the completed sales agreement, or a functionally equivalent instrument, between the franchised MCS provider and proposed assignee or transferee or buyer, so that the Council/franchising authority may discover the assumption of obligations by the franchised MCS provider and proposed assignee or transferee or buyer with respect to the multi-channel system. In lieu of the sales agreement, the Council/franchising authority may accept an attested summary of obligations assumed by the above-referenced parties. The Council/franchising authority may request additional information other than that which is expressly prohibited by law.
(i)
Before an assignment is approved by the Council/franchising authority, the proposed assignee shall execute an affidavit, acknowledging that it has read, understood, and will abide by both this chapter and the applicable franchise agreement.
(j)
In the event of any approved assignment, the assignee shall assume all obligations and liabilities of the former franchised MCS provider, unless specifically relieved by federal or state law, or unless specifically relieved by the Council/franchising authority at the time the assignment is approved.
(k)
Consistent with both the Cable Act and the FCC implementing rules, the Council/franchising authority shall have 120 days from the date of submission of a completed FCC Form 394, together with all required exhibits, data, and reports, to act upon the petition for consent of assignment, transfer, or sale. The Council/franchising authority may either approve such a petition for consent or, for cause, not approve such a petition for consent. However, the Council/franchising authority may not make the approval conditional or pre-condition the approval on completing some act.
(l)
Consistent with both the Cable Act and the FCC implementing rules, should the Council/franchising authority fail to act upon such petition for consent within the 120-day time frame, such petition will be deemed granted unless the Council/franchising authority and the petitioner otherwise agree to an extension of time.
(m)
Should the Council/franchising authority (for cause) not approve a petition for consent, then the MCS provider may immediately submit another petition or an amended petition for consent. In such a situation, the 120-day time frame begins to run anew. In such a situation, the procedural and substantive provisions of both federal and local law must again be followed and met.
[Ord. No. 135-94, 9-19-1994]
(a)
When any event, act or omission (on the part of the franchised MCS provider) occurs which represents a violation of an integral provision of this chapter, or compromises the corporate character, or legal, financial or technical integrity and/or stability of the multi-channel system or the franchised MCS provider to such a degree that the interests of the customers are negatively affected, then such event, act or omission shall be considered a material breach of this chapter. Under such circumstances, the Council/franchising authority shall notify the affected MCS provider, in writing, of the specific breach and direct such franchised MCS provider to comply with all such provisions of its franchise agreement, or this chapter. For illustrative purposes only, the events, acts and omissions include, but are not limited to, bankruptcy, insolvency, failure to pay taxes or franchise fees (including the alternative user charge if applicable), failure to receive written Council/franchising authority approval or an assignment, or failure to abide by the integral terms and conditions of the franchise agreement, or integral provisions of this chapter, including those involving matters of customer service and consumer protection needs as expressed by subscribers. For purposes of this section, "integral" means a provision which either:
(1)
Affects the ability of the customer to receive multi-channel service; or
(2)
Affects the ability of the Council/franchising authority to receive compensation for the use of its rights-of-way; or
(3)
Affects the ability of the Council/franchising authority to evaluate an MCS provider's performance in the technical, financial, and legal aspects of the multi-channel system, as well as matters involving customer service practices and issues of consumer protection.
(c)
Where a franchised MCS provider satisfactorily corrects any of the enumerated conditions within 60 days, then in no event shall the enumerated condition be weighed against such franchised MCS provider in any subsequent review of franchise performance.
(d)
A copy of such notice of material breach shall be mailed to the surety on the performance bond, unless otherwise directed by state law.
(e)
Within 75 days after such written notice is mailed to a franchised MCS provider, the Council/franchising authority shall conduct a public hearing on the matter (unless state law requires a different procedure, in which event the state procedure shall control).
(f)
The Council/franchising authority shall provide written notice to a franchised MCS provider, and to the surety, of the time and place of said public hearing in a manner consistent with either state law or approved by the Council/franchising authority.
(g)
At the time of the hearing, the affected franchised MCS provider may present information on the current status of the alleged breach of the franchise agreement. If the situation has been resolved, or steps are being taken to resolve the situation, then the franchised MCS provider shall present the information at the hearing.
(h)
If the affected franchised MCS provider fails to attend the hearing, and has not requested a continuance of the hearing, then such franchised MCS provider shall be deemed to have waived its right to a further continuation of the matter, and may be declared in default of the franchise agreement.
(i)
After the public hearing, the Council/franchising authority may determine the franchised MCS provider to be in compliance and dismiss the matter, or may determine that the MCS provider has cured any noncompliance and thereby dismiss the matter. However, the Council/franchising authority may determine that an ordinance violation exists and remains uncured. Consequently, upon a finding that the MCS provider violated a material ordinance provision, or failed to cure an outstanding ordinance violation, the Council/franchising authority may direct the affected franchised MCS provider to take corrective action within a specified period of time, or may declare such franchised MCS provider in default of the franchise agreement, and thereafter may revoke, terminate, or cancel the franchise, unless the franchised MCS provider presents sufficient mitigating circumstances.
(j)
If the Council/franchising authority directs corrective action to take place within a specified time or declares such franchised MCS provider in default of the franchise agreement, then that declaration shall be reduced to writing, and the notice of corrective action or default shall be mailed to such franchised MCS provider, and surety, within 21 days of the Council/franchising authority's action.
(k)
If within 60 days the affected franchised MCS provider, or surety, does not take significant action to rectify the breach, or submit a plan detailing how the affected MCS provider will eliminate the breach, then the Council/franchising authority shall revoke such MCS provider's franchise and shall notify the affected franchised MCS provider and surety forthwith, unless there are mitigating circumstances.
[Ord. No. 135-94, 9-19-1994]
(a)
The Council/franchising authority is authorized to design a performance evaluation procedure which periodically monitors compliance of the franchised MCS provider with the terms and conditions of both this chapter and any applicable franchise agreement. Moreover, the Council/franchising authority may periodically review and examine whether a franchised MCS provider's financial, technical, legal, and character qualifications, and its record of meeting community and subscriber needs as particularly relate to matters of customer service practices and consumer protection issues, continue to meet required operational, maintenance, and performance levels in order to ensure the uninterrupted and acceptable provision of multi-channel services. Such performance evaluations may be conducted every three years during the franchise term.
(b)
If, as a result of the evaluation, the Council/franchising authority determines that the franchised MCS provider has not complied with a provision of this chapter, then the Council/franchising authority must give the franchised MCS provider an opportunity to either correct the area of noncompliance or submit documentation of supporting data that resolves or explains the area of noncompliance.
(c)
If the franchised MCS provider fails to correct or resolve an area of noncompliance, then such failure may be treated as a material violation of this chapter.
[Ord. No. 135-94, 9-19-1994]
(a)
To the extent permitted by federal law (including applicable FCC rules and regulations), the Council/franchising authority is authorized to, and may choose to, regulate the rates for basic multi-channel service, which includes basic cable service and those charges (such as converter rental fees) associated with the provision of multi-channel service. In the event that the Council/franchising authority chooses to regulate rates for basic service, the Council/franchising authority shall follow any, and all, applicable FCC rules, regulations, and procedures concerning rate regulation.
(b)
Consistent with federal law, before the Council/franchising authority exercises its right to impose, approve, or deny the rates and charges for multi-channel service, the Council/franchising authority must conduct a public hearing in which to allow an affected MCS provider or any other interested party an opportunity to express its view concerning said proposed rate regulation.
(c)
Consistent with federal law, if the Council/franchising authority requires a refund of either a particular subscriber rate or charge, then the MCS provider is eligible for a reduction and/or rebate on a portion of its franchise fees (assuming franchise fees are part of the computational base) within 60 days or next payment cycle (whichever is sooner).
[Ord. No. 135-94, 9-19-1994; Ord. No. 2040-26, 6-2-2026]
(a)
The Council/franchising authority recognizes that presently it has no need or projected use for PEG access or commercial use/leased access within the City. The City also recognizes that in the future it may have such a need or desire to have such PEG access or commercial use/leased access provided to the City.
(b)
Consequently, for each $150,000 (or the monetary equivalent in labor, materials, and equipment) donated by a franchised MCS provider to the City, in connection with PEG access, the MCS provider may apply for a one-percent reduction in the franchise fee it pays to the City. For sums less than $150,000, the MCS provider may apply for a pro rata reduction in the franchise fee. The term of the franchise fee reduction shall be no less than 10 years, and no more than 15. Such a reduction in the franchise fee shall be approved by the Council/franchising authority unless there are clear and convincing reasons for doing otherwise. The MCS provider may also qualify for the franchise fee reduction if the MCS provider dedicates (at no or minimal cost) and/or makes available the equivalent of one channel or one fiber cable for the City's own commercial use/leased access.
[Ord. No. 135-94, 9-19-1994]
(a)
Between 210 and 30 days prior to the fourth and eighth anniversary dates of the effective date of this chapter, the Council/franchising authority shall conduct a periodic review and examination of this entire chapter.
(b)
In conducting such a periodic review and examination of this chapter, the Council/franchising authority shall, among other things, consider the following:
(1)
Whether one or more provisions have been superseded, clarified, or modified by federal or state law;
(2)
Whether one or more provisions have been superseded, clarified, or modified by a subsequent binding judicial decision;
(3)
Whether one or more provisions are unnecessary or ineffective in light of emerging and evolving technologies;
(4)
Whether new or different trends relating to MCS providers warrant or necessitate additional safeguards for customers and/or subscribers; and
(5)
Whether the economic and customer forces associated with competition have lessened the need for one or more provisions.
(c)
If after such a periodic review and examination of this chapter the Council/franchising authority determines that one or more provisions of this chapter should be amended, repealed, revised, clarified, or deleted, then the Council/franchising authority may take whatever measures necessary (to the extent permitted by law) in order to accomplish the same. It is noted that where warranted and in the best interests of the City, the Council/franchising authority may repeal the entire chapter.
[Ord. No. 135-94, 9-19-1994]
(a)
Consistent with the Cable Act, no person shall intercept or receive, or assist in intercepting or receiving, any communications service offered over a multi-channel system unless specifically authorized to do by an MCS provider, or as may be specifically authorized by law.
(b)
For the purpose of this section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for the unauthorized reception of multi-channel service as referenced in Subsection (a) of this section.
(c)
Without securing permission from an MCS provider, or making payment to an MCS provider, then no person shall be authorized to make any connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of an authorized or franchised multi-channel system for the purpose of receiving or intercepting, or assisting others to receive or intercept, any cable service provided lawfully by the MCS provider.
(d)
Any and all MCS providers are encouraged to work with the Council/franchising authority in developing and implementing a plan designed to control and eliminate the unauthorized reception of certain multi-channel services within the City.