There is hereby granted by the City of Albany, hereinafter referred to as “City,” to Comcast of Oregon II, Inc., authorized to conduct business in Oregon, their successors and assigns, hereinafter each referred to as “franchisee,” the nonexclusive right and privilege to conduct business as a cable service operator as that term is defined in ORS 30.192 within the City and to place, erect, lay, maintain and operate in, upon, over and under streets, alleys, avenues, thoroughfares and public highways, places and grounds within the City, poles, wires and other appliances and conductors for all cable service purposes. Such wires and other appliances and conductors may be strung upon poles or other fixtures above ground, or at the option of the franchisee, its successors and assigns, may be laid underground, and such other apparatus may be used as may be necessary to properly operate and maintain the same.
(Ord. 5815 § 1, 2013)
For the purpose of this chapter, the following terms shall have the meaning given herein:
(1) 
“Antenna”
shall be the tower or device for receiving radio and/or television signals for redistribution through a closed circuit.
(2) 
“Bridge”
includes a structure erected within the City to facilitate the crossing of a river, stream, ditch, ravine, or other place, but does not include a culvert.
(3) 
“Cable”
is the distributing conductor or conductors for the transmission of radio and/or television signals in a closed circuit.
(4) 
“Cable Act”
means the Cable Communications Policy Act of 1984, as amended by the Telecommunications Act of 1996, and any other Federal amendments to said statutes.
(5) 
“Cable system”
shall have the meaning specified in the definition of “cable system” in Section 602(6) of the Cable Act.
(6) 
“Cable television system” or “CATV”
means (a) the one-way transmission to subscribers of video programming or other programming service, and (b) subscriber interaction, if any, which is required for the selection of such video programming communication service.
(7) 
“City”
means the City of Albany, Oregon, and the area within its boundaries as extended in the future.
(8) 
“Conduit”
is an electrical raceway for the enclosure of electrical conductors and may consist of rigid conduit of electrical metallic tubing or plastic tubing.
(9) 
“Converter”
means an electronic device that converts signals to a frequency not susceptible to interference within the television received of a subscriber and increases the number of channels the subscriber may select.
(10) 
“Council”
means the legislative body of the City.
(11) 
“Customer,” “user” or “subscriber”
shall mean any person or entity lawfully receiving cable service.
(12) 
“Service area”
means the legal boundaries of the City and including any areas annexed during the term of the franchise.
(13) 
“Franchisee”
means Comcast of Oregon II, Inc., an Oregon corporation, its successors, legal representatives, or assigns.
(14) 
“Gross revenues”
means any revenue derived by the grantee from the operation of the cable system to provide cable services in the service area, following generally accepted accounting principles (“GAAP”), consistent with Federal and State law. However, such phrase shall not include: (a) any tax, fee or assessment of general applicability collected by the franchisee from customers for pass-through to a government agency, including the Federal Communications Commission user fee; (b) unrecovered bad debt; (c) advertising agency commissions and launch fees to the extent consistent with GAAP; and (d) franchise fees and any public, education and government (PEG) amounts received from customers. Gross revenues shall also not include revenue from any other sources or services unless and until such source or service is finally, specifically and expressly declared to be a cable service under Federal law or regulation, by Congress or the Federal Communications Commission. Grantee shall report gross revenues to the City using the accrual method of accounting, consistent with generally accepted accounting principles (“GAAP”). Nothing in this section shall impair the City’s ability to challenge grantee’s interpretation of GAAP.
(15) 
“Local”
means Linn County, Oregon, or Benton County, Oregon.
(16) 
“May”
is permissive.
(17) 
“Person”
includes an individual, corporation, association, firm, partnership, and joint stock company.
(18) 
“Public place”
includes any City-owned park, place, facility, or grounds within the City that are open to the public, but does not include a street or bridge.
(19) 
“Street”
includes the surface, the air space above the surface, and the area below the surface of any public street, alley, avenue, road, boulevard, thoroughfare, or public highway, other public right-of-way, including public utility easements, but does not include a bridge or public place.
(20) 
“Shall”
is mandatory.
(21) 
“Technical facilities” or “facilities”
shall mean all real property, equipment, and fixtures used by franchisee in the distribution of its services through its system and includes, but is not limited to, poles, conduit, cables, wires, microwave transmitters, antennas, amplifiers, etc.
(Ord. 5815 § 1, 2013)
Subject to the conditions and reservations contained in this chapter, the City hereby grants to franchisee the right, privilege and franchise to:
(1) 
Construct, maintain, and operate a cable television system within the City; and
(2) 
Install, maintain and operate on, over, or under the streets, bridges and public places approved by the City, facilities for the transmission of electronic signals to be distributed to the City and to its inhabitants and to other customers and territory beyond the limits of the City; and
(3) 
Carry on a CATV subscription business for television systems, services, and radio and television signal distribution of closed circuit signals.
(Ord. 5815 § 1, 2013)
As need arises, during the term of the franchise, the City may review the franchisee performance.
Recognizing that the field of cable communications is ever changing and to help achieve the goal of a continually advanced and modern cable communications system for the City, the franchisee and the City agree to the following review procedure:
(1) 
The City reserves the right to adopt rules and regulations controlling the procedures as set forth below and subjects for review sessions. In the absence of any action taken by the City to exercise these rights, franchisee shall be subject to at least the procedures and subjects described in this section.
(2) 
All periodic review sessions shall be open to the public and notice of sessions published in a newspaper of general circulation in the City. The franchisee shall be represented at these meetings by a representative of the corporation authorized to speak on behalf of the company on questions of corporate practice, policy, plans, or other matters concerning the cable communications system in the service area.
(3) 
Topics which may be discussed at any evaluation session include, but are not limited to, application of new technologies, system performance, programming offered, access channels, facilities and support, PEG channel broadcasts in high definition (HD) format, municipal uses of cable, customer complaints, amendments to this franchise, judicial rulings, FCC rulings, line extension policies, and any other topic the City and franchisee deem relevant, to the extent that these topics are not subject to current negotiations or confidential under Oregon law.
(4) 
As a result of these discussions, the City and the franchisee may mutually agree to negotiate modifications or revisions to the franchise. Negotiations are confidential under Oregon State or Federal law.
(Ord. 5815 § 1, 2013)
This chapter shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this chapter, the following provisions shall govern its interpretation and construction:
(1) 
When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.
(2) 
Time is of the essence for this chapter. Franchisee shall not be relieved of its obligation to comply promptly with any provision of this chapter by any failure of the City to enforce prompt compliance with any of its provisions.
(3) 
Unless otherwise specified in this chapter, any action authorized or required to be taken by the City may be taken by the Council or by an official or agent designated by the Council.
(4) 
Every duty and every act to be performed by either party imposes an obligation of good faith on the party to perform such.
(Ord. 5815 § 1, 2013)
If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Council hereby declares that it would have passed the ordinance codified in this chapter and each section, subsection, sentence, clause, and phrase hereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portion of this chapter shall not abate, reduce, or otherwise affect any other consideration or obligation required by the franchisee of any franchise granted hereafter. If any court or governmental agency shall increase the maximum amount that may be required by the franchisee, then the parties shall negotiate in good faith what the new fee shall be. During the period of negotiations, franchisee shall continue to pay the City the compensation specified in AMC § 3.26.410(1).
(Ord. 5815 § 1, 2013)
The franchisee has examined the requirements of this franchise thoroughly and the acceptance hereof constitutes a representation that they have the financial and technical capacity to carry out their obligations stated herein. All services and requirements anticipated by this franchise are commercially practicable at the time of the granting of the franchise.
(Ord. 5815 § 1, 2013)
(1) 
The grantee acknowledges and agrees that the City reserves the right to grant one or more additional franchises or other similar lawful authorization to provide cable services within the service area; provided, the City agrees that, within 90 days of the grantee’s request, it shall amend this franchise to include any material terms or conditions that it makes available to the new entrant, or provide relief from existing material terms or conditions, so as to ensure that the regulatory and financial burdens on each entity are materially equivalent. “Material terms and conditions” include, but are not limited to: franchise fees; insurance; system build-out requirements; security instruments; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. The parties agree that this provision shall not require a word-for-word identical franchise or authorization for a competitive entry, so long as the regulatory and financial burdens on each entity are materially equivalent. Video programming services delivered over wireless broadband networks are specifically exempted from the requirements of this section.
(2) 
Notwithstanding any provision to the contrary, at any time that another cable-based provider, legally authorized by State or Federal law, makes available for purchase by subscribers or customers cable services or multiple channels of video programming within the service area without a franchise or other similar lawful authorization granted by the City, and the City fails to require said cable provider to obtain a franchise, then grantee may seek modifications as per subsection (1) of this section, or the term of grantee’s franchise shall, upon 90 days’ written notice from grantee, be shortened so that the franchise shall be deemed to expire on a date six months from the first day of the month following the date of grantee’s notice.
(Ord. 5815 § 1, 2013)