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,
and to assure an uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions of this chapter or applicable
state and federal laws, rules and regulations.
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 system, pass to or vest in any person without the prior written consent of the County. A grantee may, however, transfer or assign a franchise to any affiliate (as defined in § 29-2) 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, providing 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 County and must agree to comply with all provisions of the franchise. The County 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 County. The County shall be deemed to have consented to a proposed transfer or assignment if its refusal to consent is not communicated in writing to the grantee within 120 days following receipt of written notice and aforementioned information, unless the requesting party and the County agree to an extension of time.
B.
A grantee shall promptly notify the County 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 Subsection A shall make a franchise subject to revocation unless and until the County 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 County may inquire into the qualifications of the prospective controlling party and such other legal, technical and financial matters as the County deems pertinent to its approval, and a grantee shall assist the County in such inquiry.
C.
The consent or approval of the County to any transfer
of a grantee shall not constitute a waiver or release of the rights
of the County in and to the streets, and any transfer by its terms,
shall be expressly subordinate to the terms and conditions of this
chapter and the franchise agreement.
D.
In the absence of extraordinary circumstances, the
County shall have the discretion to disapprove any transfer or assignment
of an initial franchise prior to substantial completion of construction
of the proposed system.
E.
In no event shall a transfer of ownership or control
be approved without the successor in interest becoming a signatory
to the applicable franchise agreement.
A.
A grantee shall fully cooperate in making available
at reasonable times, and the County shall have the right to inspect,
where reasonably necessary to the enforcement of a franchise, books,
records, maps, plans and other like materials of the grantee applicable
to the cable system, at any time during normal business hours, provided
where volume and convenience necessitate, a grantee may require inspection
to take place on the grantee's premises.
B.
The following records and/or reports are to be made
available to the County upon 30 days' prior written request.
(1)
An annual review or progress report submitted by a
grantee to the County;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 396-C (or successor form) or
any supplemental forms related to equal opportunity or fair contracting
policies;
(4)
Subscriber inquiry/complaint resolution date; and
(5)
Periodic construction update reports, including where
appropriate the submission of strand maps.
Copies of all petitions, applications, communications
and reports either submitted by a grantee to the FCC, Securities and
Exchange Commission, or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting
cable television operations authorized pursuant to the franchise,
or received from such agencies, shall be provided to the County upon
request.
A grantee shall file annually with the County,
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.
At the expiration of the term for which a franchise
is granted or if any renewal request is denied, or upon the termination
of a franchise as provided herein, a grantee shall forthwith, upon
reasonable notice by the County, remove at its own expense all designated
portions of its cable television system from all streets and public
property within the County. If a grantee fails to do so within 12
months of notice, the County may perform the work at the grantee's
expense. Upon such notice of removal, a bond shall be furnished by
a grantee in an amount sufficient to cover this expense.
In addition to the inherent powers of the County
to regulate and control a cable television franchise, and those powers
expressly reserved by the County or agreed to and provided for in
a franchise agreement, the right and power is hereby reserved by the
County to 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 chapter; provided, however, that
such rules, regulations, terms or conditions shall not be in conflict
with any franchise agreement granted hereunder or applicable state
and federal laws, rules and regulation.
A.
The County and a grantee may hold scheduled performance
evaluation sessions within 30 days of the third and sixth anniversary
dates of the grantee's award or renewal of the franchise and as may
be required by federal and state law. All such evaluation sessions
shall be open to the public.
B.
Special evaluation sessions may be held at any time
during the term of a franchise at the request of the County or the
grantee.
C.
All scheduled performance evaluation sessions shall
be open to the public and announced in a newspaper of general circulation
in accordance with legal notice. A grantee may be required by the
County to notify its subscribers of all such evaluation sessions by
announcements on at least one channel of its system during a specified
time frame preceding each session.
D.
Topics which may be discussed at any scheduled or
special evaluation session may include, but not be limited to, franchise
fee; penalties; application of new technologies; system performance;
customer complaints, privacy; amendments to this chapter; judicial
and FCC rulings; line extension policies; and grantee or County rules.
E.
Members of the general public may add topics either
by working through the County or the grantee or by presenting a petition
to the County Commissioners outlining the topic or topics sought to
be discussed at the evaluation session.
A.
In addition to all other rights and powers retained
by the County under a franchise or otherwise, the County reserves
the right to forfeit and terminate a franchise and all rights and
privileges of a grantee hereunder in the event of a substantial breach
of the terms and conditions of this chapter or a franchise agreement.
A substantial breach by a grantee shall include, but shall not be
limited to, the following:
(1)
Violation of any material provision of a franchise
or this chapter, or any material rule, order, regulation or determination
of the County made pursuant to a franchise or this chapter.
(2)
Attempt to evade any material provision of a franchise
or practice any fraud or deceit upon the County or the grantee's subscribers
or customers;
(4)
Failure to provide the services promised in the grantee's
application, if any, as incorporated 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 County; or
(6)
Material and intentional misrepresentation of fact
in the application for or negotiation of a franchise.
B.
The foregoing shall not constitute a major breach
if the violation occurs but is without fault of a grantee or occurs
as a result of circumstances beyond its control. A grantee shall not
be excused by mere economic hardship or by misfeasance or malfeasance
of its directors, officers or employees.
C.
The County shall make a written demand that a grantee
comply with any such provision, rule, order or determination under
or pursuant to this chapter or a franchise agreement. If the violation
by a grantee continues for a period of 30 days following such written
demand, without written or other proof acceptable to the County that
the corrective action has been taken or is being actively and expeditiously
pursued, the County may place the issue of termination of a franchise
before the Board of County Commissioners. The County shall cause to
be served upon a grantee, at least 20 days prior to the date of such
meeting, a written notice of intent to request such termination and
the time and place of the meeting. Public notice shall be given of
the meeting and the issue(s) which the Board of County Commissioners
are to consider.
D.
The Board of County 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.
E.
If the Board of County Commissioners determines the
violation by a grantee was the fault of the grantee and within its
control, the Board of County Commissioners may, by resolution, declare
that the franchise of the grantee be terminated unless there is compliance
within such period as the Board of County Commissioners may fix, such
period shall not be less than 60 days, provided no opportunity for
compliance need be granted for fraud or misrepresentation.
A.
A franchise may be deemed revoked 120 calendar days
after an assignment for the benefit of creditors or the appointment
of a receiver or trustee to take over the business of a franchisee,
whether in a receivership, reorganization, bankruptcy assignment for
the benefit of creditors, or other action or proceeding; provided,
however, that a franchise may be reinstated at the County's sole discretion
if, within that one-hundred-twenty-day period:
(1)
Such assignment, receivership or trusteeship has been
vacated; or
(2)
Such assignee, receiver, or trustee has fully complied
with the terms and conditions of this chapter and the applicable franchise
agreement and has executed an agreement, approved by a court of competent
jurisdiction, under which it assumes and agrees to be bound by the
terms and conditions of this chapter and the applicable franchise
agreement, and such other conditions as may be established or as are
required by applicable law.
B.
Notwithstanding the foregoing, in the event of foreclosure
or other judicial sale of any of the facilities, equipment, or property
or a franchisee, the County may revoke the franchise, following a
public hearing before the Board of County Commissioners, by serving
notice on the grantee and the successful bidder, in which event the
franchise and all rights and privileges of the franchise will be revoked
and will terminate 30 calendar days after serving such notice, unless:
(1)
The County has approved the transfer of the franchise
to the successful bidder; and
(2)
The successful bidder has covenanted and agreed with
the County to assume and be bound by the terms and conditions of the
franchise agreement and this chapter, and such other conditions as
may be established or as are required pursuant to this chapter or
a franchise agreement.
A.
Federal regulations pursuant to the Cable Act shall apply to the right of acquisition by the County. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B of this section shall apply.
B.
Upon the expiration of the term of a franchise and
denial of any renewal or upon any other termination thereof as provided
in this chapter, the County, at its election, shall have the right
to purchase and take over a system upon resolution by the County Commissioners.
In such event, the system shall be purchased at a price equal to the
fair market value, determined on the basis of the cable system's value
as a going concern but with no value allocated to the franchise itself,
or at a price determined in accordance with the franchise agreement
if the franchise agreement contains provisions applicable to such
an acquisition. The County must begin exercise of its option to purchase
the system within 60 days of the denial of franchise renewal. Nothing
shall prohibit a grantee, in the event of the election of the County
to purchase a system, from requesting a court of competent jurisdiction
to set a reasonable bond of the County to secure the purchase price,
which is to be immediately available funds at the time of purchase.
A.
Notwithstanding any other provisions of this chapter
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, or shall permit a grantee to perform any service, or
shall prohibit the grantee from performing any service, in conflict
with the terms of this chapter or of any law or regulation of the
County, then as soon as possible following knowledge thereof, the
grantee shall notify the County of the point of conflict believed
to exist between such regulation or law and the laws or regulations
of the County or this chapter.
B.
If the County determines that a material provision
of this chapter is affected by any subsequent action of the state
or federal government, the County shall modify any of the provisions
herein to comply with such state of federal law or regulation to such
reasonable extent as may be necessary to carry out the full intent
and purpose of this chapter and the franchise agreement, and to preserve
the benefit of the bargain for each party.
A.
Interference with cable service is prohibited. 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, cable installation
or maintenance from a grantee regulated by and lawfully operating
under a valid and existing franchise issued by the County.
B.
Gratuities and payments to permit service are prohibited.
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 a cable service to the dwelling unit occupied
by a tenant or resident requesting cable service.
C.
Penalties and charges to tenants for service are prohibited.
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 County.
D.
Reselling service is prohibited. No person shall resell,
without the expressed, written consent of the County, any cable service,
program or signal transmitted by a grantee under a franchise issued
by the County.
E.
Protection of property is permitted. Nothing in this
chapter shall prohibit a person or the County from requiring that
cable television 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 state or federal law, nothing
in this chapter 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.
In the event the County believes that a grantee has
not complied with the provisions of the chapter or a franchise agreement,
the County, by action of the County Administrator, shall notify the
grantee in writing by personal delivery or registered or certified
mail, specifying the nature of the alleged noncompliance or default
and demanding correction within a reasonable time.
B.
A grantee shall have 30 days from the receipt of the County's notice described in Subsection A:
(1)
To respond to the County, contesting the assertion
of the noncompliance or default, or
(2)
To cure such noncompliance or default, or
(3)
In the event that, by nature of the noncompliance
or default, such noncompliance or default cannot be cured within the
thirty-day period, initiate reasonable steps to remedy such noncompliance
or default and notify the County of the steps being taken and the
projected date that they will be completed.
C.
In the event grantee fails to respond to the County's notice described in Subsection A of this section, fails to correct a violation within the time prescribed and diligently remedy such violation thereafter, or responds contesting the alleged noncompliance, the grantee shall then be given a written notice of not less than 20 days of a public hearing to be held before the Board of County Commissioners. Said notice shall specify the violation(s) alleged. At the public hearing, the Board of County Commissioners shall hear and consider all relevant evidence, and thereafter render findings and its decision.
D.
In the event the Board of County Commissioners finds
that the grantee has corrected the violation, or has diligently commenced
correction of such violation after notice thereof from the grantor
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 grantor 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 grantor thereby, whether
the violation was chronic, and any justifying or mitigating circumstances
and such other matters as the grantor may deem appropriate.
E.
If the County determines after the due process hearing prescribed in Subsection C that the grantee is in noncompliance and that noncompliance is not cured within the times set forth in Subsection B of this section, or in the event that the alleged noncompliance or default is not remedied within the 30 days or the date projected pursuant to Subsection B of this section, the violation shall be deemed a civil infraction and a penalty of up to $500 per day for each day that a violation occurs may be assessable by the County 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. In the alternative, the County may seek legal or equitable relief from any court of competent jurisdiction.
F.
Unless otherwise provided in this chapter, a grantee
shall pay any penalty assessed in accordance with this chapter within
30 days after receipt of notice from the County of such penalty.
G.
In addition to the penalties set forth above, the franchise agreement
may provide for the assessment of liquidated damages for failure to
comply with the terms of this chapter or the franchise agreement.
[Amended 2-14-2017 by Ord. No. 16-26]
H.
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 chapter
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 chapter and/or its franchise agreement.
The County reserves the right to regulate rates
for basic cable service and any other services offered over the cable
system, to the extent permitted by federal or state law. The grantee
shall be subject to the rate regulation provisions provided for herein,
and those of the FCC. The County shall follow the rules relating to
cable rate regulation promulgated by the FCC.
If any provision of this chapter 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 any 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 chapter, and such
holding shall not affect the validity and enforceability of all other
provisions hereof.
A grantee shall not oppose intervention by the
County in any suit or proceeding to which the grantee is a party in
connection with a franchise hereunder.
