In addition to any other remedies available at law or equity, the Town
may pursue the following remedies in the event a grantee or any other person
violates this chapter, its franchise agreement, or applicable state or federal
law. The Town may:
A.
Seek a determination from a court of competent jurisdiction
that a provision of this chapter has been violated. If such a violation is
found to exist by the court the minimum fine imposed shall be $50 and the
maximum fine imposed per violation shall be $250. Each day the violation is
found to exist shall constitute a separate violation for which the above-indicated
fine may be assessed. Any violation found to exist on the day of trial may
be found, at a minimum, to have existed from the filing date of the complaint
until the day of trial and the fine assessed accordingly, unless the grantee
affirmatively proves that said violation did not exist during any part of
or all of the aforementioned time period. If the grantee is found by the court
to have been adjudicated in violation of any provision of this chapter on
more than one occasion within two years, whether or not a violation of the
same provision of this chapter, the minimum fine per violation shall be $100
and the maximum fine per violation shall be $500.
B.
Seek legal or equitable relief from any court of competent
jurisdiction.
C.
Apply any remedy provided for in a franchise agreement,
including enforcing provisions, if any.
A.
Town right to revoke franchise. The Town shall have the right to revoke the franchise for a grantee's substantial failure to construct or operate the cable system as required by this chapter or a franchise agreement, for defrauding or attempting to defraud the Town or subscribers, if the grantee is declared bankrupt, or for any other material violation of this chapter or material breach of a franchise agreement. To invoke the provisions of this section, the Town shall give the grantee written notice of the default in its performance. If within 30 calendar days following such written notice from the Town to the grantee the grantee has not taken corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the Town, the Town may give written notice to the grantee of its intent to revoke the franchise, stating its reasons, provided that no opportunity to cure shall be provided where the grantee has defrauded or attempted to defraud the Town or its subscribers or in the event the grantee is declared bankrupt. In the case of fraud or attempted fraud, the franchise may be revoked after the hearing required under Subsection B of this section; revocation for bankruptcy shall be governed by Subsection C of this section.
B.
Public hearing. Prior to revoking a franchise, the Town
shall hold a public hearing, on 30 calendar days' written notice, at which
time the grantee and the public shall be given an opportunity to be heard.
Following the public hearing, the Town may determine to revoke the franchise
based on the information presented at the hearing and other information of
record. If the Town determines to revoke a franchise, it shall issue a written
decision setting forth the reasons for its decision. A copy of such decision
shall be transmitted to the grantee.
C.
Revocation after assignment for benefit of creditors
or appointment of receiver or trustee.
(1)
To the extent provided by law, any franchise may, at
the option of the Town following a public hearing, be 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 the grantee, whether in
a receivership, reorganization, bankruptcy assignment for the benefit of creditors
or other action or proceeding, unless within that one-hundred-twenty-day period:
(a)
Such assignment, receivership, or trusteeship has been
vacated; or
(b)
Such assignee, receiver, or trustee has fully complied with the material terms and conditions of this chapter and a franchise agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and a franchise agreement and such other conditions as may be established or as are required under Article XII of this chapter.
(2)
In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of a grantee, the Town may revoke the franchise, following a public hearing before the Town, by serving notice on the grantee and the successful bidder at the sale, 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 the Town has approved the transfer of the franchise to the successful bidder and the successful bidder has covenanted and agreed with the Town 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 Article VIII of this chapter.
D.
Procedures on revocation, abandonment and termination.
If the Town revokes a franchise or if for any other reason a grantee abandons,
terminates, or fails to operate or maintain service to its subscribers, the
following procedures and rights are effective:
(1)
The Town may require the former grantee to remove its
facilities and equipment located in the public rights-of-way and on public
premises at the former grantee's expense. If the former grantee fails to do
so within a reasonable period of time, the Town may have the removal done
at the former grantee's and/or surety's expense. The foregoing provisions
shall not apply if, within three months after expiration, termination or revocation
of the franchise, the grantee obtains certification from the FCC to operate
an open video system or any other federal or state certification to provide
telecommunications services.
(2)
In the event of revocation, the Town, by written order,
may acquire ownership of the cable system at not less than fair market value,
determined on the basis of the cable system valued as a going concern, but
with no value allocated to the franchise itself, as specified at 47 U.S.C.
§ 547(a)(1).
(3)
If a cable system is abandoned by a grantee or the franchise
otherwise terminates, the ownership of all portions of the cable system in
the public rights-of-way shall revert to the Town and the Town may sell, assign,
or transfer all or part of the assets of the system. If a grantee abandons
a portion of its system, the ownership of the abandoned portions of the cable
system in the public rights-of-way shall revert to the Town and the Town may
sell, assign or transfer the abandoned facilities. A cable system or a portion
thereof shall be deemed abandoned if a grantee:
E.
Forfeiture for failure to comply with franchise obligation. Notwithstanding any other provision of this chapter other than the force majeure clause of § 46-85, where the Town has issued a franchise specifically conditioned in the franchise agreement on the completion of construction, system upgrade, or other specific obligation by a specified date, failure of the grantee to complete such construction or upgrade, or to comply with such other specific obligations as required, will result in the automatic forfeiture of the franchise without further action by the Town where it is so provided in the franchise agreement, unless the Town, at its discretion and for good cause demonstrated by the grantee, grants an extension of time.
The Town's exercise of one remedy or a grantee's payment of liquidated
damages or penalties shall not relieve a grantee of its obligations to comply
with its franchise. In addition, the Town may exercise any rights it has at
law or equity.
Recovery by the Town of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a grantee's duty to indemnify the Town in any way, nor shall such recovery relieve a grantee of its obligations under a franchise, limit the amounts owed to the Town, or in any respect prevent the Town from exercising any other right or remedy it may have, provided that this section shall not be interpreted as permitting the Town to recover twice for the same damage. In addition, any civil fine imposed pursuant to § 46-39A or other applicable law shall not be treated as a recovery for purposes of this section.
