[Adopted 7-27-2016 by Ord. No. 477[1]]
[1]
Editor's Note: This ordinance also provided for the repeal
of former Art. III, Cable Television, adopted 6-16-1981 by Ord. No.
128, as amended.
A.
This article shall be known and may be cited as the "Cable Service
Franchising Article of the Town of St. Michaels" (this "article").
B.
The purposes of this article are to:
(1)
Establish the terms and conditions under which a grantee occupying
the public rights-of-way must operate within the Town;
(2)
Provide for the payment of a franchise fee to the Town for use
of the public rights-of-way and other costs associated with administering
and regulating cable service; and
(3)
Enhance the Town's authority to grant a cable service franchise
while managing the public rights-of-way.
As used in this article, the following terms shall have the
meanings indicated. Words not defined shall be given their common
and ordinary meaning.
Any person, including a nonprofit community access corporation,
designated by the Town to perform any or all of the following functions:
Each person who falls into one or more of the following categories:
Each person having, directly or indirectly, a controlling interest
in a grantee;
Each person in which a grantee has, directly or indirectly,
a controlling interest; or
Each person, directly or indirectly, controlling, controlled
by or under common management, common ownership or common control
with a grantee; provided that "affiliate" shall in no event mean any
creditor of a grantee solely by virtue of its status as a creditor
and which is not otherwise an affiliate by reason of owning, directly
or indirectly, a controlling interest in, being owned by or being
under common ownership, common management or common control with a
grantee.
A binding contract granting a cable service franchise pursuant
to this article, and any amendments, exhibits or appendices thereto,
containing the specific provisions of the cable service franchise
granted, including references, specifications, requirements and other
related matters.
Any service tier, which includes the retransmission or delivery
of local television broadcast signals, origination channels and PEG
access channels. In the event that the definition of "basic cable
service" is amended by an act of the United States Congress, under
the Cable Act or otherwise, then the definition under this section
shall be amended to conform therewith.
The Cable Communications Policy Act of 1984, codified at
Title VI of the Communications Act of 1934, 47 U.S.C. §§ 521
through 573, as amended by the Cable Television Consumer Protection
and Competition Act of 1992 and the Telecommunications Act of 1996,
and as may be amended from time to time.
The one-way transmission to subscribers of video programming
or other programming services, including Internet service, and subscriber
interaction, if any, which is required for the selection or use of
such video programming or other programming service.
A system of poles, wires, cables, fibers, lines, underground
conduits, converters, equipment, appliances and/or facilities designed,
constructed or used for the purpose of producing, receiving, amplifying,
transmitting and distributing Internet service, radio, television,
telephone, data and two-way interactive impulses and energy and other
information, related services, products or matters to residential
and commercial customers of a grantee but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
rights-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Chapter II of the Cable Act, except
that such facility shall be considered a cable system if such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services; or
Any facilities of any electric utility used solely for operating
its electric utility system.
A reference to a "cable system" in this article refers to any
part of such cable system. The foregoing definition of "cable system"
shall not be deemed to circumscribe or limit the ability of the grantee
to provide any other service over its facilities that may be permitted
under applicable law or the authority of the Town to regulate or franchise
the activities of any such service to the maximum extent permitted
by law.
A portion of the electromagnetic frequency spectrum that
is used in a cable system and which is capable of delivering a television
channel (as a "television channel" is defined by the FCC).
Actual working control or ownership of a system in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any person or entity (except underwriters
during the period in which they are offering securities to the public)
of 25% or more of a cable system or a franchise under which the system
is operated. A change in the control or controlling interest of any
entity which has control or a controlling interest in a grantee shall
constitute a change in the control or controlling interest of the
system under the same criteria. Control or a controlling interest,
as used herein, may be held simultaneously by more than one person
or entity.
An electronic tuning device which converts cable service
signals into a signal that can be received and displayed on a subscriber's
television set. While not an explicit part of signal conversion, many
cable converter boxes include forms of descrambling to manage carrier-controlled
access restriction to various channels.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
A nonexclusive authorization, or renewal thereof, evidenced
by a written franchise agreement, granted pursuant to this article
and applicable law, to construct, operate and maintain a cable system
and other services offered by a grantee from time to time within the
public rights-of-way to provide cable service within all or a specified
area of the Town. The term "franchise" includes a franchise agreement.
Any such authorization, in whatever form granted, shall not mean or
include any license or permit required for the privilege of transacting
and carrying on a business within the Town as required by applicable
law, or for attaching devices to poles or other structures, whether
owned by the Town or a private entity, or for excavating or performing
other work in or along the public rights-of-way.
The geographic area within the Town that a grantee is authorized
to serve by its franchise.
The fee imposed by the Town pursuant to § A350-12 of this article. The term "franchise fee" does not include:
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators);
Capital costs that are required by a franchise agreement to
be incurred by the cable operator for public, educational or governmental
access facilities; or
Requirements or charges incidental to the awarding or enforcing
of a franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties or liquidated damages.
A person to whom or which a franchise is granted by the Town
pursuant to this article, along with the lawful successors or assigns
of such person.
Any and all revenues or consideration of any kind or nature
that constitutes revenue within generally accepted accounting principles
(including, without limitation, cash and credits) actually received
by a grantee, from the provision of cable service over the cable system
within the franchise area.
Gross revenues include, by way of illustration and not limitation:
Monthly fees charged to subscribers for any basic, optional,
premium, per-channel, per-program service or any other cable service;
Installation, disconnection, reconnection, change-in-service
and late fees;
Leased access channel fees; and
Revenues from rentals or sales of converters and/or other subscriber
equipment.
Gross revenues shall not include:
To the extent consistent with generally accepted accounting
principles, actual bad-debt write-offs:
Any taxes or fees, including the franchise fee, on services
furnished by a grantee which are imposed directly on any subscriber
or user by the state, the Town or other governmental unit and which
are collected by the grantee on behalf of said governmental unit.
All areas in the Town that will receive cable service initially,
as set forth in a franchise agreement.
The connection of the system to subscribers' terminals,
and the provision of cable service.
Any channel designated or dedicated for use by persons unaffiliated
with a grantee.
Those hours during which businesses in the Town similar to
a grantee are open to serve customers.
Those service conditions which are within the control of
a grantee. Those conditions which are not within the control of a
grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages and severe
or unusual weather conditions. Conditions which are ordinarily within
the control of a grantee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods and maintenance or upgrades of the cable system.
The complete loss of picture, sound or both on multiple channels
from multiple programmers due to a common problem which affects multiple
customers on the system.
A person authorized to administer or operate a PEG facility
and shall include the Town and the access manager. If several persons
operate or share the same PEG facility, each person shall be considered
a separate PEG access user.
Any natural person or any partnership, association, joint
stock company, joint venture, domestic or foreign corporation, stock
or nonstock corporation, limited liability company, professional limited
liability company, an organization or entity of any kind or any lawful
successor thereto or transferee thereof. Such term does not include
the Town.
The surface of and all rights-of-way and the space above
and below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, bridge,
driveway, drive or easement now or hereafter held by the Town for
the purpose of public travel and shall include other similar easements
or rights-of-way as shall be now held or hereafter held by the Town
which shall, within their proper use and meaning, entitle a grantee
to the use thereof for the purposes of installing poles, wires, cable,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
attachments and other property as may be ordinarily necessary and
pertinent to a cable system.
The loss of either picture or sound or both, on one or more
channels, affecting at least one subscriber on the system.
The State of Maryland.
Any person lawfully receiving cable service provided by a
grantee by means of or in connection with the cable system, whether
or not a fee is paid for such cable service, including such persons
authorized to receive cable service without charge as provided for
in a franchise agreement.
The Commissioners of St. Michaels, a body politic and corporate
under the laws of the State of Maryland, and any agency or department
thereof.
The administrative head of the Town, or his/her designee.
A.
Any franchise granted by the Town shall grant to a grantee the non
exclusive right and privilege to construct, erect, install, maintain
or operate:
(1)
A cable system in, upon, along, across, above, over and under
the public rights-of-way within the Town now in existence and as may
be created or established during any franchise term;
(2)
Any poles, wires, cable, underground conduits, manholes and
other television conductors and fixtures necessary for the maintenance
and operation of a cable system to provide cable service; and
(3)
Other services as may lawfully be allowed within a franchise
area.
B.
A franchise granted by the Town does not expressly or implicitly
authorize a grantee to provide service to, or install a cable system
on, private property without the owner's consent (except for
use of compatible easements pursuant to the Cable Act) or to use publicly
or privately owned conduits or any other public property without a
separate agreement with the owner(s) thereof.
A.
Any person desiring an initial franchise for cable service or the
renewal or modification of an existing franchise for cable service
shall file a written application with the Town. The application shall
be in such form and under such terms and conditions as determined
by the Town.
B.
To be acceptable for filing, a signed original of the application
shall be submitted together with sufficient copies required by the
Town. The application must be accompanied by any required application
filing fee, conform to any applicable request for proposals and contain
all required information. All applications shall include the names
and addresses of persons authorized to act on behalf of all applicants
with respect to the application.
C.
All applications accepted for filing shall be made available by the
Town for public inspection.
D.
Application.
(1)
A person may apply for an initial franchise by submitting an
application containing, at a minimum, the following information:
(a)
Name and address of the applicant and identification of the
ownership and control of the applicant, including: (i) the names and
addresses of the 10 largest holders of an ownership interest in the
applicant and affiliates of the applicant, and all persons with 5%
or more ownership interest in the applicant and its affiliates; (ii)
the persons who control the applicant and its affiliates; and (iii)
all officers and directors of the applicant and its affiliates;
(b)
A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system, including identification
of key personnel;
(c)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system;
(d)
A statement prepared by a certified public accountant regarding
the applicant's financial ability to complete the construction
and operation of the cable system proposed;
(e)
A description of the applicant's prior experience in cable
system ownership, construction and operation and identification of
communities in which the applicant or any of its principals have,
or have had, a cable franchise or any interest therein;
(f)
Identification of the area of the Town to be served by the proposed
cable system, including a description of the proposed franchise area's
boundaries;
(g)
A detailed description of the physical facilities proposed,
including channel capacity, technical design, performance characteristics,
headend and access facilities;
(h)
Where applicable, a description of the construction of the proposed
cable system, including an estimate of plant mileage and its location;
the proposed construction schedule; a description, where appropriate,
of how services will be converted from existing facilities to new
facilities; and information on the availability of space in conduits,
including, where appropriate, an estimate of the cost of any necessary
rearrangement of existing facilities;
(i)
The proposed rate structure, including projected charges for
each service, installation, converters and all other proposed equipment
or service;
(j)
A demonstration of how the applicant will reasonably meet the
future cable-related needs and interests of the Town, including descriptions
of how the applicant will meet the needs described in any recent community
needs assessment conducted by or for the Town, and how the applicant
will provide adequate PEG channel capacity, facilities or financial
support to meet the Town's needs and interests;
(k)
Pro forma financial projection for the proposed franchise term,
including a statement of projected income, and a schedule of planned
capital additions, with all significant assumptions explained in notes
or supporting schedules;
(l)
If the applicant proposes to provide cable service to an area
already served by an existing grantee, the identification of the area
where the overbuild would occur and the ability of the public rights-of-way
and other property that would be used by the applicant to accommodate
an additional cable system;
(m)
Any other information that may be reasonably necessary to demonstrate
compliance with the requirements of this article;
(n)
Any additional information that the Town may request of the
applicant that is relevant to the Town's consideration of the
application; and
(o)
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments and certifying
that the application complies with applicable law.
(2)
The Town may, at its discretion and upon request of an applicant,
waive, in writing, the provision of any of the information required
by this section.
E.
An applicant shall be notified of any public hearings held in connection
with the evaluation of its application and shall be given an opportunity
to be heard.
F.
A nonrefundable application fee shall accompany any initial franchise application, renewal application or modification application, unless otherwise stipulated by the Town. The amount of the application fee shall be established by resolution of the Town from time to time. In addition, the Town may require an applicant to reimburse the Town for its reasonable out-of-pocket expenses in considering the application, including attorney and consultant fees. Payments made by a grantee hereunder shall not be deemed to be franchise fees within the meaning of the Cable Act, and such payment shall not be deemed to be involuntary payment chargeable against, or part of, the compensation to be paid to the Town by the grantee pursuant to § A350-12 of this article and applicable provisions of any franchise agreement. The purpose of the application fee is to cover costs incidental to processing and evaluating the application and/or enforcement of the franchise.
A.
A franchise and the rights, privileges and authority granted thereto
shall take effect and be in force as set forth in the franchise agreement
and shall continue in force and effect for a term of no longer than
15 years. Such franchise shall be nonexclusive and revocable.
B.
Within 30 days after the Town's decision to grant a franchise,
the intended grantee shall file with the Town its unconditional acceptance
of the franchise and its promise to comply with and abide by all its
provisions, terms and conditions.
Franchise renewals shall be conducted in accordance with applicable
law, including, but not limited to, the Cable Act, as amended. The
Town and a grantee, by mutual consent, may enter into renewal negotiations
at any time during the term of a franchise agreement.
All notices, reports or demands required to be given in writing
pursuant this article shall be delivered personally to the Town Clerk/Manager
or his/her designee, if to the Town, and to the person designated
by a grantee in a franchise agreement, if to the grantee. A grantee
shall maintain with the Town, throughout the term of a franchise,
an address for personal service and a central office to address any
issues relating to a franchise operating under this article.
A.
In entering into a franchise agreement with the Town, a grantee shall
acknowledge that its rights thereunder are subject to the police powers
of the Town to adopt and enforce general public local laws pursuant
to applicable law and necessary to the health, safety and welfare
of the public. A grantee shall also agree to comply with all applicable
laws enacted or adopted by the Town pursuant to such power.
B.
Any conflict between the provisions of this article and any other
present or future lawful exercise of the Town's police powers
shall be resolved in favor of the latter, except that any such exercise
that is not of general application in the Town, or applies exclusively
to a grantee or cable service, which contains provisions inconsistent
with the grantee's franchise agreement, shall prevail only if
upon such exercise the Town finds an emergency exists constituting
a danger to health, safety, property or general welfare or such exercise
is mandated by law.
C.
In the event that the state or federal government discontinues preemption
in any area of cable service over which it currently exercises jurisdiction
in such manner as to expand rather than limit municipal regulatory
authority, the Town is authorized to adopt rules and regulations in
such area(s) to the extent permitted by law.
It shall be unlawful for any person to construct, erect, install,
maintain or operate a cable system in the Town within any public rights-of-way
without first having been granted a franchise by the Town pursuant
to this article.
Any franchise to provide cable service shall be valid within
all the corporate limits of the Town, unless otherwise specified in
a franchise agreement.
Upon adoption of a franchise agreement and execution thereof,
a grantee shall be bound by all the terms and conditions of this article
and any amendments thereto, unless otherwise provided in a franchise
agreement. A grantee shall also agree to provide all services specifically
set forth in its application, if any, and to provide cable service
within the confines of its franchise area. By its acceptance of a
franchise agreement, a grantee specifically grants and agrees that
its application is thereby incorporated by reference and made a part
of the franchise agreement. In the event of a conflict between the
application and the provisions of this article, that provision which
provides the greatest benefit to the Town, in the opinion of the Town,
shall prevail.
A.
The public rights-of-way of the Town to be used by a grantee in the
operation of its cable system within the boundaries of the Town are
held in public trust for the benefit of the citizens and taxpayers
of the Town, and the grant of a franchise to a grantee is a valuable
right without which a grantee would be required to invest substantial
capital in right-of-way costs, acquisitions and maintenance. For this
reason, a grantee shall pay to the Town an annual franchise fee not
to exceed 5% of the grantee's gross revenue as defined herein.
The franchise fee applicable to each franchise shall be specified
in a franchise agreement.
B.
The franchise fee shall be in addition to any other tax, fee or assessment
of general applicability or payment owed to the Town by a grantee.
C.
The franchise fee shall be paid on a quarterly basis and shall be
due 45 days after the close of each calendar quarter, unless otherwise
specified in a franchise agreement. Each payment shall be accompanied
by a verified statement showing the basis for the computation and
such other relevant factors as may be required by a franchise agreement.
D.
The Town shall have the right, no more frequently than once every
12 months, to inspect a grantee's gross revenue records directly
related to the calculation of the franchise fee and the right to audit
and to recompute any amounts determined to be payable under this article
upon 30 days' prior notice to the grantee. Any additional amount
due to the Town as a result of the audit shall be paid within 30 days
following written notice to the grantee by the Town, which notice
shall include a copy of the audit report. In the event of an overpayment,
a grantee may deduct the amount of the overpayment from the subsequent
franchise fee payment. Unless required by law, the Town shall not
disclose to any third party (other than its financial advisors in
their capacity as such) any financial information or other information
that would reasonably be regarded as confidential that the Town gains
access to in connection with the provisions of this subsection. A
grantee's gross revenue records, when made available to the Town,
shall not include subscriber-specific information.
E.
If an audit review shows that any franchise fees have been underpaid,
then a grantee shall pay the underpaid amount. If franchise fees have
been underpaid by 10% or more, then a grantee shall also reimburse
the Town for any reasonable additional expenses and costs incurred
in connection with such underpayment.
F.
A grantee shall not bundle its cable service with noncable service
so as to intentionally reduce or evade the imposition of the franchise
fee. The Town may not interfere with a grantee's marketing of
its products or services.
G.
Unless otherwise specified in a franchise agreement, if any franchise
fee payment or recomputed amount, cost or penalty is not made on or
before the applicable dates set forth in this article, interest shall
be charged daily from such date at the maximum legal rate charged
by the Internal Revenue Service for late tax payments and a grantee
shall reimburse the Town for reasonable additional expenses and costs
incurred by reason of the delinquent payment(s).
A.
For the purpose of operating and maintaining a cable system in the
franchise area, a grantee may erect, install, construct, repair, replace,
reconstruct and retain in, on, over, under, upon, across and along
the public rights-of-way within the franchise area such wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals,
attachments and other property and equipment as are necessary to the
operation of the cable system; provided, however, that the grantee
complies with all design, construction, safety and performance provisions
contained in this article, the franchise agreement, and other applicable
law.
B.
A grantee's cable system, poles, wires and appurtenances shall
be located, erected and maintained so that none of its facilities
shall endanger or interfere with the lives of persons or interfere
with the rights or reasonable convenience of property owners who adjoin
any of the public rights-of-way, or interfere with any improvements
the Town may deem proper to make, or unnecessarily hinder or obstruct
the free use of the public rights-of-way of the Town.
C.
Before commencing construction in, above, over, under, across, through
or in any way connected with the public rights-of-way (other than
such public areas not under the Town's control), a grantee shall
obtain all required permits (at the fees regularly charged therefore),
including, but not limited to, the written approval of the Town, which
approval shall not be unreasonably withheld, delayed or conditioned.
The Town may designate the location, manner and time of any construction
within the public rights-of-way. Notwithstanding the foregoing, a
grantee shall not be required to obtain a permit for individual drop
connections to subscribers, for servicing or installing pedestals,
or in instances of routine or emergency maintenance or repair to its
cable system.
D.
In case of any disturbance of pavement, sidewalk, landscaping, driveway
or other surfacing, including the surface of the public rights-of-way,
caused by a grantee or any person acting on its behalf, the grantee
shall, at its own cost and expense and in a manner and within a timeframe
approved by the Town, replace and restore all such paving, sidewalk,
driveway, landscaping or other surface disturbed, to a condition comparable
to that before the work was commenced and in accordance with standards
for such work set by the Town.
E.
A grantee or any person acting on its behalf shall not open or otherwise disturb the surface of any public right-of-way for any purpose whatsoever without: obtaining approval to do so in the manner prescribed in Subsections C and D; and obtaining all required street opening or other permits. A grantee shall be fully responsible for the actions and activities of its agents, employees and subcontractors and shall immediately respond to and rectify any complaint resulting from an activity of any such agent, employee or subcontractor.
F.
A grantee shall restore any public right-of-way it has disturbed,
and shall, at its own cost and expense, restore and replace any other
property disturbed, damaged or in any way injured, by or on account
of its activities, to a condition comparable to the condition that
said public right-of-way was in immediately prior to the disturbance,
damage or injury.
G.
A grantee shall, at its own cost and expense, protect, support, temporarily
disconnect, relocate in the same public right-of-way, or remove from
said public right-of-way, any of its property when required to do
so by the Town because of: street or other public excavation; construction;
repair; regrading or grading; traffic conditions; installation of
sewers, drains, or water pipes; Town-owned power or signal lines;
tracks; vacation or relocation of streets or any other type of structure
or improvement of a public agency; or any other type of improvement
necessary for the public health, safety or welfare. In the course
of planning and designing such public improvements, the Town may request,
and a grantee shall provide, plans, surveys and similar instruments
and information accurately identifying vertical and horizontal locations
of the underground system. When and where necessary, as determined
by the Town, a grantee shall, at its expense, perform nondestructive
excavation for information on the underground system location.
H.
A grantee shall have the authority to trim trees within the public
rights-of-way at its own expense as may be necessary to protect its
wire and facilities, subject to the direction of the Town or any other
appropriate governmental authority.
I.
Erection, removal and common uses of poles:
(1)
No poles or other wire-holding structures shall be erected by
a grantee without prior approval of the Town with regard to location,
height, types and any other pertinent aspect. However, no location
of any pole or wire-holding structure of a grantee shall be a vested
interest and such poles or structures shall be removed or modified
by the grantee at its own expense whenever the Town determines that
the public health, safety and/or welfare may be enhanced thereby.
(2)
Where poles or other wire-holding structures already existing
for use in serving the Town are available for use by a grantee, but
the grantee does not make arrangements for such use or an agreement
thereof cannot be reached, the Town may require the grantee to use
such poles and structures if it determines that the public convenience
would be enhanced thereby, the use of such poles and structures is
technically feasible and the terms of the use available to the grantee
are just and reasonable.
J.
If, at any time during the term of a franchise, the Town shall lawfully
elect to alter or change the grade of any public right-of-way and
shall require all of the respective public utilities impacted by such
alteration to remove or relocate their facilities, a grantee, upon
reasonable notice by the Town, shall remove or relocate as necessary
its poles, wires, cables, underground conduits, manholes and other
fixtures at its own expense unless the utilities are compensated,
in which case the grantee shall be similarly compensated.
K.
A grantee shall, on the request of any person holding a building
or moving permit issued by the Town, temporarily raise or lower its
wires to permit the moving of buildings. The person making the request
shall provide the grantee at least 30 days' prior written notice
to arrange for such temporary wire changes and pay the expense of
such temporary removal, raising or lowering of wires, and a grantee
shall have the authority to require such payment in advance.
L.
The operations and activities of a grantee that impact public rights-of-way are further subject to the provisions of Chapter 285 (Streets, Sidewalks and Alleys) of the Code of the Town of St. Michaels, and any conflict between the provisions of this article and Chapter 285 shall be resolved in favor of the best interests of the Town.
A.
The cable system construction timetable in an initial service area
shall be established in a franchise agreement.
B.
Unless otherwise provided for in a franchise agreement:
(1)
In any franchise area, a grantee shall be required to extend
its cable system pursuant to the following requirements:
(a)
No customer shall be refused service arbitrarily. A grantee
may extend the cable system as necessary within the Town. To expedite
the process of extending the cable system into a new subdivision,
the Town will forward to a grantee, at the grantee's request,
an approved engineering plan of each such project. Subject to the
density requirements set forth in this article, a grantee shall commence
the design and construction process upon receipt of the final engineering
plan.
(b)
Unless otherwise provided in the franchise agreement, a grantee
must extend and make cable service available to every residential
dwelling unit within the franchise Area where the minimum density
is at least five occupied dwelling units per mile and within one mile,
as measured in strand footage, from the nearest point of the cable
system trunk or feeder line from which a usable cable signal is obtainable.
For purposes of this section, a home shall be counted as a "dwelling
unit" if such home is located within 400 feet of the closest Public
Right-of-Way.
(c)
A grantee shall connect all residential dwelling units that
are within 125 feet of active feeder lines not otherwise already served
by the cable system ("standard installation"). A grantee shall be
allowed to recover, from any subscriber that requests such connection,
the actual costs incurred for a residential dwelling unit connection
that exceeds the distance of a standard installation.
(2)
In areas not meeting the requirements for mandatory extension
of cable service, a grantee shall provide, upon the request of a potential
subscriber desiring service, an estimate of the costs required to
extend service to the subscriber. Service to such subscribers may
be conditioned by a grantee upon the payment or a guaranty of payment
of associated costs and fees.
(3)
Where utility easements are available, a grantee shall install
its cable system therein so as not to encroach into the Public Right-of-Way.
In cases of new construction or property development where utilities
are to be placed underground, the Town shall encourage the developer
or property owner to give grantees reasonable, prior written notice
of such construction or development, and of the particular date on
which open trenching will be available for the installation of grantee
conduit, pedestals and/or vaults and laterals to be provided at the
expense of the grantee.
(4)
A grantee may propose a line extension policy which will result
in serving more residents of the Town than as required in this section,
in which case such line extension policy shall be incorporated into
a franchise agreement, and will be binding on the grantee.
C.
Nothing herein shall be construed to prevent a grantee from serving
areas not covered under this section upon agreement with developers,
property owners, or residents provided that franchise fees are paid
to the Town on those gross revenues.
A.
A grantee shall construct, install, operate and maintain its cable
system in a manner consistent with all applicable laws, construction
standards, governmental requirements and FCC technical standards,
as the same may be amended from time to time, including those requirements
related to radio frequency (RF) leakage. In addition, a grantee shall
provide the Town, upon request, with a written report of the results
of the grantee's periodic proof of performance tests conducted
pursuant to FCC standards and requirements.
B.
Additional specifications:
(1)
Construction, installation and maintenance of a cable system
shall be performed in an orderly and workmanlike manner. All cables
and wires shall be installed, where possible, parallel with electric
and telephone lines in accordance with industry standards. Multiple
cable configurations shall be arranged in parallel and bundled with
due respect for engineering considerations.
(3)
In any event, a cable system shall not endanger or interfere
with the safety of persons or property in a franchise Area or other
areas where a grantee may have equipment located.
(4)
Any antenna structure used in the cable system shall comply
with construction, marking and lighting of antenna structures, required
by the United States Department of Transportation.
(5)
All working facilities and conditions used during construction,
installation and maintenance of the cable system shall comply with
the applicable standards of the Occupational Safety and Health Administration.
(6)
A grantee shall maintain equipment capable of providing emergency
standby power for the headend and transport cable system for a minimum
of three hours, unless otherwise provided for in a franchise agreement.
(7)
In all areas of the Town where the cables, wires and other like
facilities of public utilities are currently placed underground or
are subsequently directed by the Town to be placed underground, including,
but not limited to, new development, a grantee shall place its cables,
wires and other like facilities underground.
C.
A grantee's repeated and verified failure to maintain specified
technical standards shall constitute a material franchise violation.
A grantee shall carry insurance in such forms and in such companies
as specified in a franchise agreement.
A.
Unless otherwise provided in a franchise agreement, a grantee shall obtain and maintain during the franchise term, at its sole cost and expense, a performance bond or a comparable security instrument running to the Town with a surety company licensed to do business in the State of Maryland to ensure the grantee's faithful performance of its obligations under the franchise agreement. The performance bond or comparable security instrument shall provide that the Town may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Town for the grantee's confirmed violations of the franchise agreement, after notice and opportunity to cure, in accordance with § A350-39 of this article. The form and amount of the performance bond or comparable security instrument shall be specified in the franchise agreement. A grantee shall not reduce, cancel or materially change said bond or comparable security instrument from the requirement contained herein without the express prior written permission of the Town.
B.
Nothing herein shall be deemed a waiver of the normal permit and
bonding requirements made of all contractors working within the Town's
public rights-of-way or otherwise.
A.
The Town shall not at any time be liable for injury or damage occurring
to any person or property from any cause whatsoever arising out of
the construction, maintenance, repair, use, operation, condition or
dismantling of a grantee's cable system or due, in whole or in
part, to the act or omission of any person other than the Town or
those persons for which the Town is legally liable as a matter of
law.
B.
A grantee, under any franchise operated pursuant to this article,
shall agree to indemnify, hold harmless, release and defend the Town,
its officers, boards, commissions, agents and employees from and against
any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, disability, losses, expenses, including reasonable
attorneys' fees and costs, or liabilities of any nature that
may be asserted by any person resulting or in any manner arising from
the negligent action or inaction of the grantee in constructing, operating,
maintaining, repairing or removing the cable system, in carrying on
the grantee's business or operations in the Town or in exercising
or failing to exercise any right or privilege granted by the franchise.
This indemnity shall apply, without limitation, to any action or cause
of action for invasion of privacy, defamation, antitrust, errors and
omissions, theft, fire, violation or infringement of any copyright,
trademark, trade names, service mark or patent or any other right
of any person, firm or corporation, whether or not any act or omission
complained of is authorized, allowed or prohibited by this article
or any franchise agreement, but shall not include any claim or action
arising, in whole or in part, out of the negligent actions or inactions
of County officers, employees or agents or related to any County programming
or other access programming for which the grantee is not legally responsible.
C.
In the event any action or proceeding shall be brought against the
Town or any of its officers, boards, commissions, agents or employees
by reason of any matter for which the Town is indemnified hereunder,
the grantee shall, upon timely notice from the Town (a period of time
provided by law that allows the grantee to take action to avoid entry
of a default judgment and does not prejudice the grantee's ability
to defend the claim or action) and at the grantee's sole cost
and expense, resist and defend the same; provided, however, that the
grantee shall not admit liability in any such matter on behalf of
the Town or any of its officers, boards, commissions, agents or employees
without the written consent of the Town Attorney or his/her designee.
D.
The Town shall give a grantee prompt notice of the making of any
claim or the commencement of any action, suit, or other proceeding
subject to indemnification pursuant to this section. Nothing herein
shall be deemed to prevent the Town from cooperating with a grantee
and participating in the defense of any litigation through the Town
Attorney.
E.
Nothing in any franchise agreement entered into pursuant to this
article shall be intended to express or imply a waiver of the statutory
provisions, of any kind or nature, as set forth in state statutes,
including the limits of liability of the Town as exists presently
or may be amended from time to time.
A.
A grantee shall not deny service or access or otherwise discriminate
against subscribers, channel users, PEG users or any other citizen
of the Town on the basis of race, color, religion, national origin,
disability or gender. A grantee shall comply at all times with all
applicable laws relating to nondiscrimination, which are hereby incorporated
and made part of this article by reference.
B.
A grantee shall strictly adhere to the equal employment opportunity
requirements of the FCC, federal, state and local regulations, as
amended from time to time.
C.
A grantee shall, at all times, comply with the privacy requirements
of federal and state law.
D.
A grantee is required to make all cable system services available
to all residential dwellings and dwelling units throughout the franchise
area which meet the minimum housing density requirements set forth
in this article or in a franchise agreement.
E.
It shall be the right of all persons to receive all available services
provided on the cable system so long as such person's financial
or other obligations to the grantee are satisfied; provided, however,
that a grantee may deny service for good cause, including, but not
limited to, theft of the grantee's services, vandalism of its
property or abuse or harassment of its representatives. Nothing contained
herein shall prohibit a grantee from offering bulk discounts, promotional
discounts, package discounts or other such pricing strategies as part
of its business practice, subject to the provisions of this article.
Grantees shall ensure that access to cable service is not denied to
any group of potential residential cable subscribers because of the
income of the residents of the local area in which such group resides.
Minimum public notice of any public meeting relating to a franchise
shall be made as prescribed by the Town.
A.
A grantee shall fully cooperate in making available at reasonable
times, and the Town shall have the right to inspect, where reasonably
necessary to the enforcement of a franchise and upon reasonable prior
written notice, books, records, reports, maps, plans and other like
materials of the grantee directly applicable to the cable system in
the Town.
B.
The following records and/or reports are to be made available to
the Town upon 30 days' prior written request:
(1)
Periodic preventive maintenance reports;
(2)
Any copies of FCC Form 396-C, "Multi-Channel Program Distributor
EEO Program Annual Report" (or successor form) or any supplemental
forms related to equal opportunity or fair contracting policies;
(3)
A record of monthly service calls which will indicate the nature
of each written subscriber inquiry/complaint received in the past
12 months, the date it was received, the disposition of the inquiry/complaint
and the date of resolution; and
(4)
Periodic construction update reports, during that period of
time a construction project is in progress and/or the submission of
strand maps (i.e., maps showing the location of the cable system in
relation to the streets and roadways in the Town).
C.
Upon request, a grantee shall file annually with the Town, no later
than 120 days after the end of the grantee's fiscal year, a copy
of a gross revenues statement certified by an officer of the grantee.
A.
Upon written request of not less than 30 days' prior written
notice to a grantee, the Town may conduct evaluation and review sessions
during the term of a franchise agreement, but not more than once every
three years; provided, however, that special evaluation and review
sessions may be held at any time during the franchise term at the
request of the Town or a grantee.
B.
All scheduled evaluation and review sessions shall be open to the
public and announced in a newspaper of general circulation in accordance
with legal notice standards applicable to public hearings. The Town,
in its discretion, may also require a grantee to notify its subscribers
of all such sessions by announcements on at least one channel of the
cable system during a specified timeframe preceding each session.
During any such public performance evaluation session in which a grantee
chooses to participate, the grantee shall be afforded due process
and a full opportunity to be heard. This shall include the ability
to introduce evidence, to question witnesses and to respond to any
notice of technical or legal shortcoming in accordance with the standards
of a fair hearing applicable to administrative or public hearings
pursuant to county, state and/or federal law.
C.
During an evaluation and review session, a grantee may choose not
to participate but shall fully cooperate with the Town and shall provide
without cost such reasonable information and documents as the Town
may request to perform the evaluation and review in accordance with
applicable law.
A.
In any franchise agreement entered into pursuant to this article,
the Town shall agree to timely advise a grantee of any request by
any person, other than a Town official or Town employee in the performance
of such official's or employee's duties, seeking to review
or obtain such documents. In the event that the Town determines that
such documents are disclosable under the Maryland Public Information
Act ("MPIA"), the Town shall timely advise the grantee and allow the
grantee to challenge the disclosure of such documents at the grantee's
own expense. If the grantee's challenge of the disclosure is
unsuccessful, the grantee, in addition to its own expenses, shall
indemnify, defend and hold harmless the Town, and its officials and
employees, of and from all costs and damages related to the challenge,
including reasonable attorneys' fees. If the Town determines
that such documents are not disclosable under the MPIA, the Town shall
not disclose such documents, shall advise the requester of the basis
for such nondisclosure and requester's rights under the MPIA
and shall advise timely the grantee of any challenge by the requester
to such action.
B.
In any franchise agreement entered into pursuant to this article,
a grantee and the Town shall each agree to provide the other, upon
written request, with copies of all pleadings, court filings and nonprivileged
correspondence relating to the defense of any action brought to disclose
documents under the MPIA.
A.
It shall be the right of all subscribers to continue receiving cable service, consistent with the provisions of § A350-19. If a grantee elects to rebuild, modify or sell its cable system, or the Town gives notice of intent to terminate or fails to renew a franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances.
B.
If there is a change of franchise, or if a new operator acquires
the cable system, a grantee shall cooperate with the Town and the
new grantee or operator in maintaining continuity of service to all
subscribers. During this transition period, a grantee shall be entitled
to the revenues for any period during which it operates the cable
system, and shall be entitled to reasonable costs for its services
until it no longer operates the cable system.
C.
Unless otherwise provided for in the franchise agreement, if a grantee
fails to operate a cable system for 14 consecutive days without prior
approval of the Town or without just cause, the Town may, at its option,
operate the cable system or designate an operator until such time
as the grantee restores service under conditions acceptable to the
Town or a permanent operator is selected. If the Town is required
to fulfill this obligation for a grantee, the grantee shall reimburse
the Town for all reasonable costs or damages in excess of revenues
from the cable system received by the Town that are the result of
the grantee's failure to perform.
A.
The Town Clerk/Manager, or his/her designee, is designated as having
primary responsibility for the continuing administration of a franchise
and implementation and oversight of complaint procedures.
B.
Unless otherwise provided in the franchise agreement, a grantee shall
maintain, during the term of a franchise and any renewal thereof,
a central office for the purpose of receiving and resolving all complaints
regarding the quality of service, equipment malfunctions, and similar
matters. The office must be reachable by a local, toll-free telephone
call and by electronic mail.
C.
As subscribers are connected or reconnected to a grantee's cable
system, the grantee shall, by appropriate means, such as a card, brochure
or electronic mail, furnish information concerning the procedures
for making inquiries or complaints, including the address, local telephone
number and Internet website for customer service.
D.
To the extent permitted by applicable law, the Town shall have the
right and authority to require a grantee to test, analyze and report
on the performance of its cable system, provided that the Town shall
not require a grantee to test the cable system as a whole, or any
specific part thereof, more than once during any calendar year, unless
a test shows that the cable system or such a specific part fails to
meet relevant performance specifications. A grantee shall fully cooperate
with the Town in performing such testing and shall prepare results
and a report, if requested, within 45 days after notice.
(1)
Such report shall include the following information:
(a)
The nature of the written complaint or problem which precipitated
the tests;
(b)
What cable system component was tested;
(c)
The equipment used and procedures employed in testing;
(d)
The method, if any, in which such complaint or problem was resolved;
and
(e)
Any other information pertinent to the tests and analysis which
may be required.
(2)
A grantee's periodic proof of performance tests conducted
pursuant to FCC standards and requirements may satisfy a test or report
required by the Town under this section.
(3)
The Town may require an independent review of a performance
test, with the independent reviewer selected by the Town to review
the cable system in cooperation with a grantee. Should such a test
prove that the grantee failed to meet a technical standard, the grantee
shall bear the cost of such independent observer. Should such a test
prove that the grantee met the technical standard(s), the Town shall
bear the cost of such test.
A.
A cable system shall have the services and facilities prescribed
in this article and in a franchise agreement.
B.
Upon the execution of a franchise agreement, a grantee shall notify
the Town of the number of channels and types of services it offers
and intends to offer on the cable system. A grantee's channel
lineup shall be an exhibit to the franchise agreement as an example
of the types of programming service the grantee provides. A grantee
shall notify the Town, in writing, within 30 days of any change in
the number of channels or types of services offered, consistent with
the requirements of federal law.
C.
A grantee shall incorporate into its cable system sufficient capacity
to transmit an emergency alert signal consistent with FCC requirements
to all participating subscribers in the manner set forth under 47
CFR Part 11, FCC Rules and Regulations, Emergency Alert System (EAS),
as amended. A grantee shall cooperate with the Town in the use and
operation of the EAS.
D.
A grantee may alter, adjust, modify, rebuild, upgrade, redesign or
otherwise reconfigure the cable system at any time during the term
of a franchise agreement; provided, however, that no such no alteration,
adjustment, modifications, rebuild, upgrade, redesign or other reconfiguration
of the cable system shall have the effect of reducing the technical
capabilities of the cable system from those prescribed herein or in
a franchise agreement.
A grantee shall make available leased access channels to ensure
that the widest possible diversity of information sources are made
available to subscribers. The number of such channels shall be determined
by applicable law.
Unless otherwise provided in a franchise agreement:
A.
A grantee shall put, keep and maintain all parts of a cable system
in good condition throughout the term of a franchise.
B.
Upon the reasonable request for service by any person located within
a grantee's franchise Area, the grantee shall, within 60 days,
furnish the requested service to such person pursuant to this article
and within the terms of any franchise agreement. A request for service
shall be unreasonable for the purpose of this subsection if no trunk
line installation capable of servicing the person's property
has as yet been installed.
C.
A grantee shall render efficient service, make repairs promptly and
interrupt service only for good cause and for the shortest time possible.
Such interruptions, to the maximum extent practicable, shall be preceded
by notice to subscribers and shall occur during periods of minimal
cable system use.
D.
A grantee shall not allow its cable system or other operations to
interfere with television reception of subscribers or persons not
served by the grantee.
E.
A grantee shall provide and maintain a toll-free telephone access
line available to subscribers 24 hours a day, seven days a week, or
a comparable customer service communication system. Trained representatives
shall be available to respond to customer inquiries during normal
business hours.
F.
Under normal operating conditions, telephone answer time, including
wait time and the time required to transfer the call, shall not exceed
60 seconds. This standard shall be met no less than 90% of the time
as measured on a quarterly basis.
G.
At least 95% of standard installations will be performed within seven
business days after an order has been placed, unless otherwise specified
by the customer. A standard installation is one that is aerial and
within 125 feet of an existing cable system.
H.
Excluding those situations which are beyond its control, a grantee
will respond to any service interruption promptly and in no event
later than 24 hours from the time the interruption becomes known.
All other regular service requests will be responded to the next business
day after notification of the service problem.
I.
A customer service center(s) and bill payment facilit(ies) shall
be conveniently located for subscribers and open for walk-in customer
transactions during normal business hours. A grantee may, in its sole
discretion, establish supplemental hours on weekdays and/or weekends
if it would fit the needs of the community served.
J.
In the event of an outage of subscriber cable service, the following
shall apply after proper notification to a grantee:
(1)
For outages of over six consecutive hours and up to seven days,
a grantee shall provide, at a subscriber's written request, a
credit of one-thirtieth of one month's fees for affected services
for each twenty-four-hour period service is interrupted for six consecutive
or more hours for any single subscriber, with the exception of: subscribers
disconnected because of nonpayment; excessive signal leakage; or circumstances
beyond the grantee's reasonable control.
(2)
For outages of seven days or more in one month which have been
properly reported, in writing, to a grantee and which are within the
grantee's reasonable control, the grantee shall provide, at a
subscriber's written request, a credit for service to the affected
subscribers in accordance with the grantee's billing and refund
policies.
K.
A grantee will provide written information in each of the following
areas at the time of installation and at any future time upon the
request of the customer:
L.
Bills will be clear, concise and understandable, with all services
itemized consistent with applicable law.
M.
Credits will be issued promptly, but no later than a customer's
next billing cycle following the resolution of the request and the
return of equipment to a grantee if service has been terminated.
N.
Unless otherwise specified by FCC regulations, customers and the
Town will be notified a minimum of 30 days in advance of any rate
or programming channel change, provided that the change is within
the control of a grantee.
O.
In accordance with § A350-21B, a grantee shall keep a record
of monthly service calls which will indicate the nature of each service
complaint received in the past 12 months, the date it was received,
the disposition of said complaint, and the date thereof. Upon reasonable
notice, such records shall be made available to the Town for inspection.
P.
All personnel of a grantee contacting subscribers or potential subscribers
outside the office of the grantee must be clearly identified as associated
with the grantee.
A grantee shall provide, for sale or lease, to subscribers,
upon request, a parental control locking device or digital code that
permits inhibiting the video and audio portions of any channels offered
by the grantee.
A.
Basic cable service, including Internet service at speeds satisfactory
to the Town, will, upon request of the Town, be made available by
a grantee to any Town buildings and facilities identified in a franchise
agreement. Connection and access to the cable system shall be provided
to such public buildings and facilities within 90 days of the Town's
written request. One drop per building or facility shall be made without
charge for installation of up to 125 feet from a grantee's activated
cable system. Unless otherwise provided in a franchise agreement,
the Town shall be solely responsible for any costs associated with
the installation of any additional drop or nonstandard drop costs,
line extension costs or other construction cost other than the one
standard drop per building or facility.
B.
A grantee will not pass through, as an external cost to subscribers
of the cable system, the cost of providing cable service, including
Internet service, to Town buildings and facilities.
Unless otherwise provided in a franchise agreement:
A.
Upon 180 days' prior written request from the Town, a grantee
shall make available to each of its subscribers who receive some or
all of the cable services offered on the cable system, reception of
one PEG channel, which shall be used for noncommercial public, educational
and government programming. The PEG channel shall be made available
by a grantee for use by the Town and its citizens in accordance with
this article and applicable law. The grantee will provide the PEG
channel on the lowest available digital programming tier or as otherwise
provided in federal or state laws or regulations.
B.
A grantee shall dedicate one additional channel for PEG access upon
the Town's 180 days' prior written request if the existing
PEG channel is in continuous use.
(1)
For purposes of this section, "continuous use" shall be defined
as the use of the PEG channel with programming that is at least 80%
original, nonrepetitive programming broadcast from 8:00 a.m. to 11:00
p.m., seven days a week for three consecutive months. Text or character
generated programming shall not be considered "continuous use" for
purposes of this section.
(2)
To the extent that a PEG channel is not being used for the provision
of noncommercial, public, educational or governmental access purposes,
a grantee shall be permitted to use such channel for the provision
of other services subject to any reasonable rules established by the
Town regarding such use; provided, however, that such permitted use
shall cease within 90 days of the grantee's receipt of written
notice from the Town that such channel will again be used for PEG
access on a countywide or cable-system-wide basis.
C.
To enable distribution of the PEG channel, a grantee shall install
the appropriate wiring, if necessary, for an Internet-based or other
type of capable technology-enabling cablecast and distribution via
the cable system to subscribers in the franchise area. No charge shall
be made for the installation of the wiring if necessary; however,
any equipment necessary to distribute PEG programming will be at the
Town's expense. Any recurring monthly costs for the Internet-based
or other type of capable technology and/or the recurring costs of
a third party program support provider shall be at the expense of
the Town.
(1)
If the Town wishes to cablecast live programming, and such live
programming cannot be accommodated through an Internet-based or other
type of capable technology, then the Town shall select a location
within the franchise area and a grantee shall provide and install,
within 180 days' written notice from the Town, the cables, wires,
lines and other signal distribution equipment for an alternative technology
such that live programming can originate from the selected location
and be distributed via the cable system to subscribers in the franchise
area. These cables, wires, lines and other signal distribution equipment
shall be collectively known as the "return line."
(2)
Any expenditures made in connection with construction and maintenance
of return lines for live programming, not utilizing an Internet-based
or other type of capable technology, shall be at the expense of the
Town.
(3)
A grantee shall be responsible for maintaining the wiring to
the video origination points, provided that the Town provides the
grantee with access to the location and access to the PEG equipment
within the location. A grantee shall provide, install and maintain
in good working order the equipment and the fiber necessary for transmitting
the signal to the channel aggregation site for further processing
and distribution to subscribers. A grantee shall deliver the PEG channel
signal at a level of technical quality in accordance with FCC technical
specifications; provided, however, that the grantee shall have no
responsibility to improve upon or modify the signal quality of any
PEG channel content provided to the grantee by any PEG access user.
(4)
The Town or its designee shall be responsible for providing
any necessary production or playback equipment and shall be responsible
for securing and supervising all of the trained/qualified personnel
required for the operation of the PEG channel. The Town and a grantee
shall work cooperatively in implementing the PEG channel through such
means and in such manner as shall be mutually satisfactory.
D.
PEG facilities and equipment.
(1)
In promotion and support of PEG channel utilization, a grantee
may pay the Town a grant in such amount as may be set forth in the
franchise agreement and such grant, if any, shall be used by the Town,
in its sole discretion, to purchase, operate and maintain PEG facilities
and equipment.
(2)
The Town shall be responsible for the provision and operation
of the PEG facilities and equipment. The Town may delegate from time
to time its responsibilities to others who then shall assume the responsibility
of the Town in accordance with the Town's delegation.
(3)
The Town will develop reasonable rules regarding use of PEG
facilities and equipment.
(4)
A grantee is responsible for its headend equipment necessary
for the playback of programming, including operation and maintenance.
The Town is responsible for all on-site equipment for telecasting
from any origination point.
E.
All capital costs incurred by a grantee for providing the use of
the PEG channels and supporting such channels, including any and all
access facilities and equipment and capital grants, may be designated
as "costs of franchise requirements" or "external costs" pursuant
to the Cable Act.
A.
At the expiration of the franchise term or if any renewal request
is denied, or upon the termination of a franchise as provided in this
article, the Town may require a grantee to remove, at the grantee's
expense, all designated portions of its cable system from all public
rights-of-way within the Town. If a grantee fails to do so within
a reasonable time prescribed by the Town, then the Town may perform
such removal at the grantee's expense.
B.
Notwithstanding the above and pursuant to the Cable Act, a grantee
shall not be required to remove its cable system, or to relocate or
sell the cable system or any portion thereof, as a result of revocation,
denial of renewal or any other lawful action to forbid or disallow
the grantee from providing cable service, if the cable system is actively
being used to facilitate any other services not governed by the Cable
Act or any portion thereof.
In addition to the inherent powers of the Town to regulate and
control a cable service franchise, and those powers expressly reserved
by the Town or agreed to and provided for in a franchise agreement,
the right and power is hereby reserved by the Town to duly promulgate
such additional regulations as it shall find necessary in the exercise
of its lawful powers and furtherance of the terms and conditions of
this article; provided, however, such rules, regulations, terms or
conditions shall not be in conflict with a franchise agreement granted
pursuant to this article or applicable law.
A grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the grantee to exercise
its rights and perform its obligations under a franchise agreement
and to ensure uninterrupted service to each and all of its customers
provided; however, such rules, regulations, terms or conditions shall
not be in conflict with a franchise agreement granted pursuant to
the Cable Act or applicable law.
Notwithstanding any other provisions of this article to the
contrary, a grantee shall at all times comply with all laws and regulations
of the local, state and federal government or any administrative agencies
thereof; provided, however, if any such state or federal law or regulation
shall require the grantee to perform any service, permit the grantee
to perform any service or prohibit the grantee from performing any
service, in conflict with the terms of this article or of any law
or regulation of the Town, then as soon as possible following knowledge
thereof, the grantee shall notify the Town of the point of conflict
believed to exist between such regulation or law and the laws or regulations
of the Town or this article.
The Town reserves the right to regulate rates for basic cable
service and any other services offered over a cable system, to the
extent permitted by applicable law. A grantee shall be subject to
the rate regulation provisions provided for herein, and those of the
FCC.
To the extent any applicable law may in the future: (i) permit
the Town to regulate any fee, charge or deposit, or any term or condition
with respect thereto; (ii) permit the Town to increase the franchise
fee or the rate thereof; or (iii) permit the Town to assess the franchise
fee against items or categories of items; or (iv) expand the authority
of the Town in any other way or manner, the Town shall not be estopped
or prohibited from so doing by any provision of a franchise agreement,
by virtue of having granted a franchise to a grantee or by the existence
thereof.
A.
In addition to all other rights and powers retained by the Town under
applicable law, the Town reserves the right to forfeit and terminate
a franchise and all rights and privileges of a grantee thereunder
in the event of a substantial breach of the terms and conditions of
this article or a franchise agreement. A substantial breach by a grantee
shall include, but not be limited to, the following:
(1)
A violation of any material provision of a franchise agreement
or this article or any material rule, order, regulation or determination
of the Town made pursuant to a franchise agreement or this article.
(2)
An attempt to evade any material provision of a franchise agreement
or perpetuate any fraud or deceit upon the Town or a grantee's
subscribers or customers;
(3)
Material failure to begin or complete cable system construction
or extension as specified in a franchise agreement;
(4)
Material failure to provide the services promised in a grantee's
application, if any, as provided in a franchise agreement;
(5)
Failure to restore service after 96 consecutive hours of an
outage or service interruption, except when approval of such outage
or service interruption is obtained from the Town; or
(6)
Material and intentional misrepresentation of fact in the application
for a franchise or in the negotiation of a franchise agreement.
B.
The foregoing shall not constitute a substantial breach if the violation
occurs but results directly or indirectly from circumstances beyond
a grantee's control; provided, however, that a grantee shall
not be excused by mere economic hardship or by misfeasance or malfeasance
of its directors, officers, employees or agents.
C.
In the event of a substantial breach of a franchise agreement, the
Town shall make a written demand that a grantee comply with any such
provision, rule, order or determination under or pursuant to this
article or a franchise agreement. If the substantial breach continues
for a period of 30 days following such written demand, without written
or other proof acceptable to the Town that the corrective action has
been taken or is being actively and expeditiously pursued, then the
Town may place the issue of termination of a franchise before the
Town Commissioners. The Town shall cause to be served upon a grantee,
at least 45 days prior to the date of such meeting, a written notice
of intent to invoke termination proceedings and the time and place
of the meeting. Public notice shall be given of the meeting and the
issue(s) which the Town Commissioners shall consider.
D.
The Town Commissioners shall hear and consider the issue(s) and shall
hear any person interested therein and shall determine in its discretion
whether or not any violation by a grantee has occurred. During any
such public hearing, the grantee shall be afforded due process and
a full opportunity to be heard. This shall include the ability to
introduce evidence, to question witnesses and to respond to any notice
of noncompliance in accordance with the standards of a fair hearing
applicable to administrative or public hearings pursuant to state
and/or federal law.
E.
If the Town Commissioners determine the violation by a grantee was
the fault of the grantee and within its control, the Town Commissioners
may declare in a written decision that the grantee's franchise
be terminated unless there is compliance within such period as the
Town Commissioners may fix, to not be less than 60 days, provided
no opportunity for compliance need be granted for fraud or misrepresentation.
All notice requirements shall be met by providing the grantee with
written notice (via certified mail, return receipt requested) of any
public hearing concerning the proposed revocation of a franchise.
F.
In addition to the penalties provided for herein, the Town and a
grantee may agree upon any other lawful remedies in a franchise agreement.
A.
In the event the Town believes that a grantee has violated any provision of this article or a franchise agreement, provided that such violation does not constitute a substantial breach pursuant to § A350-38 of this article, the Town, by action of the Town Clerk/Manager or his/her designee, shall provide the grantee with written notice specifying the nature of the alleged violation and demanding correction within a reasonable time.
B.
A grantee shall have 30 days from the receipt of the Town's
notice:
(1)
To respond to the Town, contesting the assertion of the violation;
(2)
To cure such violation; or
(3)
In the event that, by nature of the violation, such violation
cannot be cured within the thirty-day period, initiate reasonable
steps to remedy such violation and notify the Town of the steps being
taken and the projected date that they will be completed.
C.
In the event a grantee fails to respond to the Town's notice,
fails to correct a violation within the time prescribed and diligently
remedy such violation thereafter or responds contesting the alleged
violation, the grantee shall then be given written notice of not less
than 20 days prior to a public hearing to be held before the Town
Commissioners. Said notice shall specify the violation(s) alleged.
At the public hearing, the Town Commissioners shall hear and consider
all relevant evidence, and thereafter render findings and its decision.
D.
In the event the Town Commissioners find that a grantee has corrected
the violation, or has diligently commenced correction of such violation
after notice thereof from the Town and is diligently proceeding to
fully remedy such violation, or that no material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall
be imposed. In determining whether a violation is material, the Town
Commissioners shall take into consideration the reliability of the
evidence of the violation, the nature of the violation and the damage,
if any, caused to the Town thereby, whether the violation was chronic,
and any justifying or mitigating circumstances and such other matters
as it may deem appropriate.
E.
If the Town Commissioners determine after the hearing prescribed
that a grantee is in violation and such violation is not timely cured,
or in the event that the alleged violation is not remedied within
the timeframe prescribed, the violation shall be deemed a civil infraction
and a penalty of up to $250 per day for each day that a violation
occurs may be assessable by the Town against a grantee in addition
to any amounts otherwise due, and may be chargeable to the grantee's
surety bond, letter of credit, performance bond or security deposit,
if any. In the alternative, the Town may seek legal or equitable relief
from any court of competent jurisdiction.
F.
Unless otherwise provided in this article, a grantee shall pay any
penalty assessed in accordance with this article within 30 days after
receipt of notice from the Town of such penalty.
G.
Pending litigation or any appeal to any regulatory body or court
having jurisdiction over a grantee shall not excuse the grantee from
the performance of its obligations under this article or its franchise
agreement unless a stay is obtained. Failure of the grantee to perform
such obligations because of pending litigation or petition, in the
absence of a stay issued by a forum of competent jurisdiction, may
result in forfeiture or revocation pursuant to the provisions of this
article and/or its franchise agreement.
A.
Except as may be provided in a franchise agreement, a franchise or
a franchised cable system shall not be assigned or transferred, either
in whole or in part, or leased, sublet or mortgaged in any manner,
nor shall title thereto, either legal or equitable, or any right,
interest or property therein, or control over such franchise or cable
system, pass to or vest in any person without the prior written consent
of the Town. A grantee may, however, transfer or assign a franchise
to any affiliate or to a wholly owned subsidiary of the grantee (or
its parent corporation) and such subsidiary may transfer or assign
the franchise back to the grantee without such consent, provided that
such transfer or assignment is without any release of liability or
responsibility of the grantee for any purpose, including franchise
renewal. The proposed assignee must, inter alia, show financial responsibility
as determined by the Town and must agree to comply with all provisions
of the franchise. The Town shall have 120 days to act upon any request
for approval of such a sale or transfer submitted, in writing, that
contains or is accompanied by the information required by FCC regulations
and the Town. The Town shall be deemed to have consented to a proposed
transfer or assignment if its refusal to consent is not communicated,
in writing, to a grantee within 120 days following receipt of written
notice and aforementioned information, unless the requesting party
and the Town agree to an extension of time.
B.
A grantee shall promptly notify the Town of any actual or proposed
change in, or transfer of, or acquisition by any other party of, control
of the grantee. Every assignment or transfer of a grantee as specified
in this section shall make a franchise subject to revocation unless
and until the Town shall have consented thereto, which consent will
not be unreasonably withheld. For the purpose of determining whether
it shall consent to such change, transfer or acquisition of control,
the Town may inquire into the qualifications of the prospective controlling
party and such other legal, technical and financial matters as the
Town deems pertinent to its approval; and a grantee shall assist the
Town in such inquiry.
C.
The consent or approval of the Town to any transfer of a grantee
shall not constitute a waiver or release of the rights of the Town
in and to the public rights-of-way, and any transfer by its terms
shall be expressly subordinate to the terms and conditions of this
article and any franchise agreement.
D.
In no event shall a transfer of ownership or control be approved
without the successor in interest becoming a signatory to an applicable
franchise agreement.
A.
Neither the owner of any multiple-unit residential dwelling nor his
agent or representative shall interfere with the right of any tenant
or lawful resident thereof to receive cable service, installation
or maintenance from a grantee regulated by and lawfully operating
under a valid and existing franchise issued by the Town.
B.
Neither the owner of any multiple-unit residential dwelling nor his
agent or representative shall ask, demand or receive any payment,
service or gratuity in any form as a condition for permitting or cooperating
with the installation of cable service to a dwelling unit occupied
by a tenant or resident requesting cable service.
C.
Neither the owner of any multiple-unit residential dwelling nor his
agent or representative shall penalize, charge or surcharge a tenant
or resident or forfeit or threaten to forfeit any right of such tenant
or resident, or discriminate in any way against such tenant or resident
who requests or receives cable service from a grantee operating under
a valid and existing franchise issued by the Town.
D.
No person shall resell, without the express, written consent of the
Town, any cable service, program or signal transmitted by a grantee
under a franchise issued by the Town.
E.
Nothing in this article shall prohibit a person or the Town from
requiring that cable system facilities conform to laws and regulations
and reasonable conditions necessary to protect safety, functioning,
appearance and value of premises or the convenience and safety of
persons or property.
F.
Except as provided by applicable law, nothing in this article shall
prohibit a person from requesting a grantee to indemnify the owner,
or his agents or representatives, for damages or from liability for
damages caused by the installation, operation, maintenance or removal
of cable system facilities.
A grantee shall not oppose intervention by the Town in any suit
or proceeding to which the grantee is a party in connection with a
franchise provided under this article.
Federal regulations pursuant to the Cable Act shall apply to
the right of acquisition by the Town.
If any provision of this article is held by any court or by
any state or federal agency of competent jurisdiction to be invalid
as conflicting with any federal or state law, rule or regulation now
or hereinafter in effect, or is held by such court or agency to be
modified in a way in order to conform to the requirements of any such
law, rule or regulation, such provision shall be considered a separate,
distinct and independent part of this article, and such holding shall
not affect the validity and enforceability of all other provisions
hereof.
This article shall be in full force and effect at the expiration
of 20 days from the date of its final passage. All prior ordinances
and parts of ordinances in conflict with this article are hereby repealed.
