[HISTORY: Adopted by the City Council of the City of New Carrollton 3-3-1999
by Ord. No. 99-01. [This ordinance also repealed former Ch.
45, Cable Television, adopted 9-2-1981 (Ch. 12 of the 1975
Code).] Amendments noted where applicable.]
GENERAL REFERENCES
Emergency Preparedness Plan — See Ch. 10.
A.
Title. This chapter shall be known and may be cited as
the "City Cable Communications Regulatory Code."
B.
Effective date and repealer. This chapter shall take
effect and be in force from and after passage. All prior ordinances or parts
of ordinances in conflict with the provisions of this chapter are hereby repealed.
C.
Findings and purpose.
(1)
The City of New Carrollton, Maryland, ("city") finds
that the further development of cable communications may result in great benefits
for the people of the city. Cable technology is rapidly changing, and cable
plays an essential role as part of the city's basic infrastructure. Cable
television systems occupy and extensively make use of scarce and valuable
public rights-of-way in a manner different from the way in which the general
public uses them and in a manner reserved primarily for those who provide
essential services to the public subject to special public interest obligations,
such as utility companies. The city finds that public convenience, safety
and general welfare can best be served by establishing regulatory powers vested
in the city or such persons as the city so designates to protect the public
and to ensure that any franchise granted is operated in the public interest.
(2)
Further, it is recognized that cable systems have the
capacity to provide not only entertainment and information services to the
city's residents, but they can provide a variety of broadband, interactive
communications services to institutions and individuals.
(3)
In light of the foregoing, the following goals, among
others, underlie the provisions set forth in this chapter:
(a)
Cable service should be available to as many city residents
as possible.
(b)
A cable system should be capable of accommodating both
present and reasonably foreseeable future cable-related needs of the city.
(c)
A cable system should be constructed and maintained during
a franchise term so that changes in technology may be integrated to the maximum
extent possible into existing system facilities.
(d)
A cable system should be responsive to the needs and
interests of the local community and shall provide a diversity of information
sources and service to the public.
(e)
A cable operator should pay fair compensation to the
city for the use of local public rights-of-way.
(4)
The city intends that all provisions set forth in this
chapter be construed to serve the public interest and the foregoing public
purposes and that any franchise issued pursuant to this chapter be construed
to include the foregoing findings and public purposes as integral parts thereof.
D.
Delegation of powers. The city may delegate the performance
of any act, duty or obligation or the exercise of any power under this chapter
or any franchise agreement to any employee, officer, department or agency,
except where prohibited by applicable law.
For the purposes of this chapter, the following terms, phrases, words
and abbreviations shall have the meanings given herein, unless otherwise expressly
stated. When not inconsistent with the context, words used in the present
tense include the future tense; words in the plural number include the singular
number, and words in the singular number include the plural number; and the
masculine gender includes the feminine gender. The words "shall" and "will"
are mandatory and "may" is permissive. Unless otherwise expressly stated,
words not defined herein shall be given the meanings set forth in Title 47
of the United States Code, as amended, and, if not defined therein, their
common and ordinary meanings.
Any channel on a cable system set aside by a franchisee for public,
educational or governmental use.
Any person who owns or controls, is owned or controlled by or is
under common ownership or control with a franchisee.
Any service tier that includes the retransmission of local television
broadcast signals and/or public, educational and governmental access signals.
The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521
et seq., as amended from time to time.
The one-way transmission to subscribers of video programming or other
programming services; and subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming service.
A facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable television service which includes video programming and which is provided
to multiple subscribers within the city, but such term does not include:
A facility that serves only to retransmit the television signals of
one (1) 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 Title II of the Communications 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;
An open video system that complies with 47 U.S.C. § 573; or
Any facilities of any electric utility used solely for operating its
electric utility system.
A reference to a cable system refers to any part thereof, including,
without limitation, converters.
The foregoing definition of "cable system" shall not be deemed to circumscribe
or limit the valid authority of the city to regulate or franchise the activities
of any other communications system or provider of communications services
to the full extent permitted by law. Any franchise agreement shall define
the services any franchisee is authorized to use the public rights-of-way
to provide.
A six-megahertz (MHz) frequency band, or equivalent capacity, which
is capable of carrying either one (1) standard video signal, a number of audio,
digital or other nonvideo signals or some combination of such signals.
The City of New Carrollton, Maryland, and any agency, department
or agent thereof.
An electronic device which may serve as an interface between a system
and a subscriber's television receiver or other terminal equipment and
which may perform a variety of functions, including signal security, descrambling,
electronic polling, frequency conversion and channel selection.
The governing body of the city.
Same as "subscriber."
Any channel on a cable system set aside by a franchisee for educational
use.
The Federal Communications Commission, its designee or any successor
governmental entity thereto.
A nonexclusive authorization granted pursuant to this chapter to
construct, operate and maintain a cable system along the public rights-of-way
to provide cable service within all or a specified area of the city. Any such
authorization, in whatever form granted, shall not mean or include any general
license or permit required for the privilege of transacting and carrying on
a business within the city as required by the ordinances and laws of the city
or for attaching devices to poles or other structures, whether owned by the
city or a private entity, or for excavating or performing other work in or
along public rights-of-way.
A contract entered into pursuant to this chapter between the city
and a franchisee that sets forth, subject to this chapter, the terms and conditions
under which a franchise will be granted and exercised.
The area of the city that a franchisee is authorized to serve by
its franchise agreement.
A natural person, partnership, domestic or foreign corporation, association,
joint venture or organization of any kind that has been granted a franchise
by the city.
Any channel on a cable system set aside by a franchisee for government
use.
The connection of system services to subscribers' television
receivers or other subscriber-owned or -provided terminal equipment.
Any channel on a cable system designated or dedicated for use by
a person unaffiliated with the franchisee.
The Mayor of New Carrollton, Prince George's County, Maryland,
or his designee.
The amount remaining after deducting from gross revenues all of the
actual, direct and indirect expenses associated with operating the cable system,
including the franchise fee, interest, depreciation and federal or state income
taxes.
Those hours during which most similar businesses in the community
are open to serve customers, including some evening hours at least one (1)
night per week and/or some weekend hours.
Those service conditions that are within the control of a franchisee.
Conditions that are not within the control of a franchisee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone
network outages and severe weather conditions. Conditions that are ordinarily
within the control of a franchisee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods and maintenance or upgrade of a cable system.
An open video system that complies with 47 U.S.C. § 653,
as amended.
An individual, partnership, association, joint-stock company, organization,
corporation or any lawful successor thereto or transferee thereof, but such
term does not include the city.
Any person or entity that produces or otherwise provides program
material or information for transmission by video, audio, digital or other
signals, either live or from recorded traces or other storage media, to user
or subscribers by means of a cable system.
Any channel on a cable system set aside by a franchisee for use by
the general public, including groups and individuals, and which is available
for such use on a nondiscriminatory basis.
The surface, the air space above the surface and the area below the
surface of any public street, highway, lane, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, park, parkway, waterway, easement or similar property
within the city, which, consistent with the purposes for which it was dedicated,
may be used for the purpose of installing and maintaining a cable system.
No reference herein or in any franchise agreement to a public right-of-way
shall be deemed to be a representation or guaranty by the city that its interest
or other right to control the use of such property is sufficient to permit
its use for such purposes, and a franchisee shall be deemed to gain only those
rights to use as are properly in the city and as the city may have the undisputed
right and power to give.
A performance bond, letter of credit or cash deposit or any or all
of these, to the extent required by a franchise agreement.
Loss of picture or sound on one (1) or more cable channels, as described
in FCC regulations as of December 1, 1998.
Any person who legally receives any service delivered over a cable
system.
A person or organization using a channel or equipment and facilities
for purposes of producing or transmitting material, as contrasted with the
receipt thereof in the capacity of a subscriber.
A.
Grant.
(1)
The city may grant one (1) or more cable franchises,
and each such franchise shall be awarded in accordance with and subject to
the provisions of this chapter.
(2)
Franchises shall be granted by action of the Council
pursuant to applicable law.
(3)
No person may construct or operate a cable system without
a franchise granted by the city. No person may be granted a franchise without
having entered into a franchise agreement with the city pursuant to this chapter.
B.
Term of franchise. No franchise shall be granted for
a period of more than fifteen (15) years, except that a franchisee may apply
for renewal or extension pursuant to applicable law.
C.
Franchise characteristics.
(1)
A franchise authorizes use of public rights-of-way for
installing cables, wires, lines, optical fiber, underground conduit and other
devices necessary and appurtenant to the operation of a cable system to provide
cable service within a franchise area, but does not expressly or implicitly
authorize a franchisee to provide service to or install a cable system on
private property without owner consent [except for use of compatible easements
pursuant to Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2)
and common law] or to use publicly or privately owned conduits without a separate
agreement with the owners.
(2)
A franchise shall constitute both a right and an obligation
to provide the cable services regulated by the provisions of this chapter
and the franchise agreement.
(3)
A franchise is nonexclusive and will not explicitly or
implicitly preclude the issuance of other franchises to operate cable systems
within the city; affect the city's right to authorize use of public rights-of-way
by other persons to operate cable systems or for other purposes as it determines
appropriate; or affect the city's right to itself construct, operate
or maintain a cable system, with or without a franchise.
(4)
All privileges prescribed by a franchise shall be subordinate
to (without limitation) the city's use and any prior lawful occupancy
of the public rights-of-way.
(5)
The city reserves the right to reasonably designate where
a franchisee's facilities are to be placed within the public rights-of-way
and to resolve any disputes among users of the public rights-of-way.
D.
Franchisee subject to other laws, police power.
(1)
A franchisee shall at all times be subject to and shall
comply with all applicable federal, state and local laws. A franchisee shall
at all times be subject to all lawful exercise of the police power of the
city, including all rights the city may have under 47 U.S.C. § 552.
Nothing in a franchise agreement shall be deemed to waive the requirements
of the various codes and ordinances of the city regarding permits, fees to
be paid or manner of construction.
(2)
No course of dealing between a franchisee and the city,
or any delay on the part of the city in exercising any rights hereunder, or
any acquiescence by the city in the actions of a franchisee that are in contravention
of such rights (except to the extent such rights are expressly waived by the
city) shall operate as a waiver of any such rights of the city.
(3)
The city may, from time to time, issue such reasonable
rules and regulations concerning cable systems as are consistent with applicable
law.
E.
Interpretation of franchise terms.
(1)
The provisions of this chapter and any franchise agreement
will be liberally construed in favor of the city in order to effectuate their
purposes and objectives and to promote the public interest.
(2)
Subject to federal law or regulation, a franchise agreement
will be governed by and construed in accordance with the laws of the State
of Maryland.
F.
Operation of a cable system without a franchise. Any
person who occupies the public rights-of-way of the city for the purpose of
operating or constructing a cable system or an OVS and who does not hold a
valid franchise (or other authority allowing such entity to be in the public
rights-of-way to provide video services) from the city shall nonetheless,
to the extent allowable by law, be subject to all provisions of this chapter,
including, but not limited to, its provisions regarding construction and technical
standards and franchise fees. Such person shall apply for a franchise within
thirty (30) days of receipt of a written notice by the city that a franchise
agreement is required. The city may, in its discretion, require such person
to remove its property and restore the area to a condition satisfactory to
the city within a reasonable time period, as the city shall determine; remove
the property itself and restore the area to a satisfactory condition and charge
the person the costs therefor; and/or take any other action it is entitled
to take under applicable law, including filing for and seeking damages under
trespass. In no event shall a franchise be created unless it is issued by
action of the city and subject to a written franchise agreement.
G.
Acts at franchisee's expense. Any act that a franchisee
is or may be required to perform under this chapter, a franchise agreement
or applicable law, including, but not limited to, removal, replacement or
modification of the installation of any of its facilities and restoration
to city standards and specifications of any damage or disturbance caused to
the public rights-of-way as a result of its operations or construction on
its behalf, shall be performed at the franchisee's expense, unless expressly
provided to the contrary in this chapter, the franchise agreement or applicable
law.
H.
Eminent domain. Nothing herein shall be deemed or construed
to impair or affect, in any way or to any extent, the city's rights of
eminent domain to the extent to which they may apply to any public utility
or cable system.
A.
Application required.
(1)
A written application shall be filed with the city for
grant of an initial franchise or modification of a franchise agreement pursuant
to 47 U.S.C. § 545.
(2)
To be acceptable for filing, a signed original of the
application shall be submitted together with twelve (12) copies. 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.
(3)
All applications accepted for filing shall be made available
by the city for public inspection.
B.
Application for grant of an initial franchise.
(1)
A person may apply for an initial franchise by submitting an application containing the information required in § 45-4C. Upon receipt of such an application, the city may either evaluate the application pursuant to § 45-4B(3), conducting such investigations as it deems necessary; or issue a request for proposals (RFP), after conducting, if necessary, a proceeding to identify the future cable-related needs and interests of the community. Any such RFP shall be mailed to the person requesting its issuance and made available to any other interested party. The RFP may contain a proposed franchise agreement.
(2)
An applicant shall respond to an RFP by filing an application within the time directed by the city, providing the information and material set forth in § 45-4C. The procedures, instructions and requirements set forth in the RFP shall be followed by each applicant. Any applicant that has already filed materials pursuant to Subsection B(1) herein need not refile the same materials with its RFP response, but must amplify its application to include any additional or different materials required by the RFP. The city or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(3)
In evaluating an application for a franchise, the city
shall consider, among other things, the following factors:
(a)
The extent to which the applicant has substantially complied
with the applicable law and the material terms of any existing cable franchise
for the city;
(b)
Whether the quality of the applicant's service under
any existing franchise in the city, including signal quality, response to
customer complaints, billing practices and the like, has been reasonable in
light of the needs and interests of the communities served;
(c)
Whether the applicant has the financial, technical and
legal qualifications to provide cable service;
(d)
Whether the application satisfies any minimum requirements
established by the city and is otherwise reasonable to meet the future cable-related
needs and interests of the community, taking into account the cost of meeting
such needs and interests;
(e)
Whether, to the extent not considered under § 45-4B(3)(d), the applicant will provide adequate public, educational and governmental access channel capacity, facilities or financial support;
(f)
Whether issuance of a franchise is warranted in the public
interest considering the immediate and future effect on the public rights-of-way
and private property that would be used by the cable system, including the
extent to which installation or maintenance as planned would require replacement
of property or involve disruption of property, public services or use of the
public rights-of-way; the effect of granting a franchise on the ability of
cable to meet the cable-related needs and interests of the community; and
the comparative superiority or inferiority of competing applications.
(g)
What effects a grant of the application may have on competition
in the delivery of cable service in the city.
(4)
If the city finds that it is in the public interest to
issue a franchise, considering, without limitation, the factors set forth
above and subject to the applicant's entry into an appropriate franchise
agreement, it shall issue a franchise. If the city denies a franchise, it
will issue a written decision explaining why the franchise was denied. Prior
to deciding whether or not to issue a franchise, the city may hold one (1)
or more public hearings or implement other procedures under which comments
from the public on an application may be received. The city also may grant
or deny a request for a franchise based on its review of an application without
further proceedings and may reject any application that is incomplete or fails
to respond to an RFP. This chapter is not intended and shall not be interpreted
to grant any party standing to challenge the denial of an application or the
issuance of a franchise unless such standing is necessary to enforce a party's
rights under its franchise agreement or applicable law.
C.
Contents of application. An RFP for the grant of an initial
franchise shall require, and any such application shall contain, at a minimum,
the following information:
(1)
Name and address of the applicant and identification
of the ownership and control of the applicant, including: the names and addresses
of the ten (10) largest holders of an ownership interest in the applicant
and affiliates of the applicant, and all persons with five-percent or more
ownership interest in the applicant and its affiliates; the persons who control
the applicant and its affiliates; all officers and directors of the applicant
and its affiliates; and any other business affiliation and cable system ownership
interest of each named person.
(2)
A demonstration of the applicant's technical ability
to construct and/or operate the proposed cable system, including identification
of key personnel.
(3)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system, including, but not
limited to, the following factors:
(a)
The city shall consider whether an applicant has had
previous requests for a franchise denied by the city or other franchising
authorities.
(b)
The applicant must have the necessary authority under
Maryland law to operate a cable system.
(c)
The applicant must have the necessary authority under
federal law to hold the franchise and operate a cable system. An applicant
must have or show that it is qualified to obtain any necessary federal franchises
or waivers required to operate the system proposed.
(d)
The city shall consider whether, at any time during the
ten (10) years preceding the submission of the application, the applicant
was convicted of any act or omission of such character that the applicant
cannot be relied upon to deal truthfully with the city and the subscribers
of the cable system or to substantially comply with its lawful obligations
under applicable law, including obligations under consumer protection laws
and laws prohibiting anticompetitive acts, fraud, racketeering or other similar
conduct.
(e)
The city shall consider whether an applicant files materially
misleading information in its application or intentionally withholds information
that the applicant lawfully is required to provide.
(f)
The city shall consider whether any elected official
of the city holds a controlling interest in the applicant or an affiliate
of the applicant.
(g)
The city shall provide an opportunity to an applicant
to show that it would be inappropriate to deny it a franchise by virtue of
the particular circumstances surrounding the matter and the steps taken by
the applicant to cure all harms flowing therefrom and prevent their recurrence,
the lack of involvement of the applicant's principals or the remoteness
of the matter from the operation of cable systems.
(4)
A demonstration of financial qualifications to complete
the construction and operation of the cable system proposed.
(5)
A description of any 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.
(6)
Identification of the area of the city to be served by
the proposed cable system, including a description of the proposed franchise
area's boundaries.
(7)
A detailed description of the physical facilities proposed,
including channel capacity, technical design, performance characteristics,
headend and access facilities.
(8)
Where applicable, a description of the construction of
the proposed system, including an estimate of plant mileage and its location;
the proposed construction schedule; and a description, where appropriate,
of how services will be converted from existing facilities to new facilities.
(9)
A demonstration of how the applicant will reasonably
meet the future cable-related needs and interests of the community, including
public, educational and governmental access channel capacity, facilities or
financial support to meet the community's needs and interests.
(10)
If necessary at the city's discretion, pro forma
financial projections 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.
(11)
Any other information that may be reasonably necessary
to demonstrate compliance with the requirements of this chapter.
(12)
Any additional information that the city may reasonably
request of the applicant that is relevant to the city's consideration
of the application.
(13)
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 meets all federal and state law requirements.
D.
Application for grant of a renewal franchise. The renewal
of any franchise to provide cable service shall be conducted in a manner consistent
with Section 626 of the Cable Act, 47 U.S.C. § 546, as from time
to time amended.
E.
Application for modification of a franchise. An application
for modification of a franchise agreement shall include, at minimum, the following
information:
(1)
The specific modification requested;
(2)
The justification for the requested modification, including
the impact of the requested modification on subscribers and others, and the
financial impact on the applicant if the modification is approved or disapproved,
demonstrated through, inter alia, submission of financial pro formas;
(3)
A statement whether the modification is sought pursuant
to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a
demonstration that the requested modification meets the standards set forth
in 47 U.S.C. § 545;
(4)
Any other information that the applicant believes is
necessary for the city to make an informed determination on the application
for modification; and
(5)
An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information in the application,
and certifying that the application is consistent with all federal and state
law requirements.
F.
Public hearings. 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. In addition, prior to the issuance
of a franchise, the city shall provide for the holding of a public hearing
within the proposed franchise area, following reasonable notice to the public,
at which every applicant and its applications shall be examined and the public
and all interested parties afforded a reasonable opportunity to be heard.
G.
Acceptance of franchise. Following approval by the city,
any franchise granted pursuant to this chapter, and the rights, privileges
and authority granted by a franchise agreement, shall take effect and be in
force from and after the first date on which both the franchisee and the city
have accepted and signed the franchise agreement.
A.
To be acceptable for filing, any application of the type
listed below submitted after the effective date of this chapter shall be accompanied
by a nonrefundable filing fee of five thousand dollars ($5,000.), payable
to the city, to cover costs incidental to the awarding or enforcement of the
franchise, as appropriate:
B.
To the extent consistent with applicable law:
(1)
The city may require the franchisee or, where applicable,
a transferor or transferee to reimburse the city for its reasonable out-of-pocket
expenses in considering the application, including consultants' fees.
(2)
No payments made hereunder shall be considered a franchise
fee, but fall within one or more of the exceptions in 47 U.S.C. § 542(g)(2).
A.
Availability of cable service. A franchisee shall construct
and operate its system so as to provide service to all parts of its franchise
area having a density of at least twenty (20) residences per mile of system.
In addition, all areas which reach such density at any time during the franchise
term shall be provided service upon reaching the minimum density.
B.
Line extension requirement. Except as federal law may otherwise require and subject to the minimum density requirements specified in § 45-6A, a franchisee shall, upon request, extend its trunk and distribution system to any subscriber located within two hundred fifty (250) feet of a main distribution cable located in the public rights-of-way at its standard installation charge, unless the franchisee demonstrates to the city's satisfaction that extraordinary circumstances exist; and extend its trunk and distribution system to any potential subscriber outside the two-hundred-fifty-foot limit, provided that the franchisee may charge the potential subscriber for the cost of the actual length of the installed drop, or the shortest distance to the point where the franchisee would be required to extend its distribution system, whichever is shorter, except where the franchisee has demonstrated to the city's satisfaction that extraordinary circumstances exist. In areas where the minimum density requirement is not met or where extraordinary circumstances exist, a franchisee shall, upon request, extend its cable system to a potential subscriber, provided that the subscriber shall pay the additional extension costs.
C.
Cost sharing.
(1)
"Additional extension costs," as used in Subsection B herein, shall mean a subscriber's pro rata share of: a franchisee's total construction costs at the actual density of affected potential subscribers, less the total construction costs that the franchisee would incur if it were extending its system to make service available to the same number of potential subscribers at a density of twenty (20) residences per mile.
D.
Continuity of service.
(1)
It is the right of all subscribers in the franchise area
to receive all available services from a franchisee, as those services become
available, as long as their financial and other obligations to the franchisee
are satisfied.
(2)
A franchisee shall ensure that all subscribers receive
continuous uninterrupted service. At the city's request, a franchisee
shall, as trustee for its successor in interest, operate its system for a
temporary period (the transition period) following the termination, sale or
transfer of its franchise as necessary to maintain service to subscribers
and shall cooperate with the city to assure an orderly transition from it
to another franchisee.
(3)
During such transition period, a franchisee shall not
sell any of the system assets nor make any physical, material, administrative
or operational change that would tend to reduce the quality of service to
subscribers, decrease the system's income or materially increase expenses
without the express permission in writing, of the city.
(4)
The city may seek legal and/or equitable relief to enforce
the provisions of this section.
(5)
The transition period shall be no longer than the reasonable
period required to ensure that cable service will be available to subscribers,
and shall not be longer than thirty-six (36) months, unless extended by the
city for good cause. During the transition period, a franchisee will continue
to be obligated to comply with the terms and conditions of the agreement and
applicable laws and regulations.
(6)
If a franchisee abandons its system during the franchise
term or fails to operate its system in accordance with the terms of its franchise
agreement during any transition period, the city, at its option, may operate
the system, designate another entity to operate the system temporarily until
the franchisee restores service under conditions acceptable to the city or
until the franchise is revoked and a new franchisee selected by the city is
providing service or obtain an injunction requiring the franchisee to continue
operations. If the city is required to operate or designate another entity
to operate the cable systems the franchisee shall reimburse the city or its
designee for all reasonable costs and damages incurred that are in excess
of the revenues from the cable system.
(7)
A franchisee shall forfeit its rights to notice and hearing,
and the Council may, by resolution, declare its franchise immediately terminated,
in addition to any other relief or remedies it may have under its franchise
agreement, this chapter or other applicable law, if:
(a)
The franchisee fails to provide cable service in accordance
with its franchise over a substantial portion of the franchise area for ninety-six
(96) consecutive hours, unless the city authorizes a longer interruption of
service or the failure is due to force majeure as characterized in its franchise
agreement; or
(b)
The franchisee, for any period, willfully and without
cause refuses to provide cable service in accordance with its franchise over
a substantial portion of the franchise area.
A.
System construction schedule. Every franchise agreement
shall specify the construction schedule that will apply to any required construction,
upgrade or rebuild of the cable system.
B.
Construction procedures.
(1)
A franchisee shall construct, operate and maintain its
cable system in strict compliance with all applicable laws, ordinances, rules
and regulations, including, but not limited to, the National Electrical Safety
Code and the National Fire Protection Association National Electrical Code,
as such may be amended from time to time.
(2)
The system and all parts thereof shall be subject to
the right of periodic inspection by the city.
(3)
No construction, reconstruction, installation or relocation
of the system or any part thereof within the public rights-of-way shall be
commenced until all applicable written permits have been obtained from the
proper city officials. In any permit so issued, such officials may impose
such conditions and regulations as a condition of the granting of the permit
as are necessary for the purpose of protecting any structures in the public
rights-of-way and for the proper restoration of such public rights-of-way
and structures and for the protection of the public and the continuity of
pedestrian and vehicular traffic.
(4)
A franchisee shall, by a time specified by the city,
protect, support, temporarily disconnect, relocate or remove any of its property
when required by the city by reason of traffic conditions; public safety;
public right-of-way construction; public right-of-way maintenance or repair
(including resurfacing or widening); change of public right-of-way grade;
construction, installation or repair of sewers, drains, water pipes, power
lines, signal lines, tracks or any other type of government owned communications
system, public work or improvement or any government owned utility; public
right-of-way vacation; or for any other purpose where the conveyance of the
city would be served thereby; provided, however, that a franchisee shall,
in all such cases, have the privilege of abandoning any property in place,
after obtaining permission from the city.
(5)
If any removal, relaying or relocation is required to
accommodate the construction, operation or repair of the facilities of another
person that is authorized to use the public rights-of-way, a franchisee shall,
after reasonable advance written notice, take action to effect the necessary
changes requested by the responsible entity. The city may resolve disputes
as to responsibility for costs associated with the removal, relaying or relocation
of facilities as among entities authorized to install facilities in the public
rights-of-way if the parties are unable to do so themselves, and if the matter
is not governed by a valid contract between the parties or a state or federal
law or regulation.
(6)
In the event of an emergency or where a cable system
creates or is contributing to an imminent danger to health, safety or property,
the city may remove, relay or relocate any or all parts of that cable system
without prior notice.
(7)
A franchisee shall, on the request of any person holding
a building moving permit issued by the city, temporarily raise or lower its
wires to permit the moving of buildings. The expense of such temporary removal
or raising or lowering of wires shall be paid by the person requesting same,
and a franchisee shall have the authority to require such payment in advance,
except in the case where the requesting person is the city, in which case
no such payment shall be required. A franchisee shall be given not less than
seventy-two (72) hours' advance notice to arrange for such temporary
wire changes.
(8)
A franchisee shall participate in any "Ms. Utility" program
active in its franchise area with regard to giving and receiving notice of
the location of facilities and excavations.
C.
Restoration. Any and all public rights-of-way, public
property or private property that is disturbed or damaged during the construction,
repair, replacement, relocation, operation, maintenance or construction of
a cable system shall be repaired, replaced and restored, as appropriate, in
substantially the same condition and in a good workmanlike, timely manner,
in accordance with the standards for such work set by the city. With respect
to damage or disturbances to public rights-of-way or public property, all
repairs and restoration shall be performed in accordance with Subtitle 23
of the Prince George's City Code or any successor provision. All repairs,
replacements and restoration shall be undertaken within no more than thirty
(30) days after the damage is incurred, and shall be completed as soon as
reasonably possible thereafter. A franchisee shall guarantee and maintain
such restoration for at least one (1) year against defective materials or
workmanship.
D.
Use of public property.
(1)
Should the grades or lines of the public rights-of-way
that the franchisee is authorized by a franchise to use and occupy be changed
at any time during the term of a franchise, the franchisee shall, if necessary,
relocate or change its system so as to conform with the new grades or lines.
(2)
Any alteration to the water mains, sewerage or drainage
system or to any city, state or other public structures in the public rights-of-way
required on account of the presence of a franchisee's system in the public
rights-of-way shall be made at the sole cost and expense of the franchisee.
During any work of constructing, operating or maintaining of a system, the
franchisee shall also protect any and all existing structures belonging to
the city and any other person. All work performed by the franchisee shall
be done in the manner prescribed by the city or other officials having jurisdiction
therein.
E.
Interference with public projects. Nothing in this chapter
or any franchise agreement shall be in preference or hindrance to the right
of the city and any board, authority, commission or public service corporation
to perform or carry on any public works or public improvements of any description,
and should a franchisee's system in any way interfere with the construction,
maintenance or repair of such public works or public improvements, the franchisee
shall protect or relocate its system or part thereof as reasonably directed
by any city official, board, authority, commission or public service corporation.
A.
Management of channels.
(1)
The city may designate one (1) or more entities, including
a nonprofit access management corporation to perform any or all of the following
functions:
(2)
Educational and public access channels shall not be managed
by the same entity; provided, however, that until such entities have been
designated, the city shall be responsible for these functions.
B.
Public access programming rules. For any public access
channel, the entity managing such channel shall establish rules that prohibit
the presentation of any advertising material designed to promote the sale
of commercial products or services (including advertising by or on behalf
of candidates for public office), lottery information and obscene matter;
rules requiring first-come, nondiscriminatory access; and rules permitting
public inspection of the complete record of the names and addresses of all
persons and groups requesting access time. Such a record shall be retained
for a period of two (2) years.
C.
Use of access channels. Governmental access channel(s)
shall be for the noncommercial use of the city and/or other governmental entities.
Educational access channel(s) shall be for the noncommercial use of the educational
community.
A.
General provisions. This § 45-9 sets forth customer service standards that a franchisee must satisfy. In addition, the franchisee shall at all times satisfy any additional or stricter requirements established by FCC regulations or other applicable federal, state or local law or regulation, as the same may be amended from time to time.
(1)
Nothing in this chapter may be construed to prevent or
prohibit:
(a)
The city and a franchisee from agreeing to customer service
requirements that exceed the standards set forth in this chapter;
(b)
The city from enforcing, through the end of a franchise
term, preexisting customer service requirements that exceed the standards
set forth in this chapter and are contained in current franchise agreements;
(c)
The city from enacting or enforcing any customer service
or consumer protection laws or regulations; or
(2)
Nothing in this chapter in any way relieves a franchisee
of its obligation to comply with other applicable consumer protection laws
and its franchise agreement.
B.
Installations, connections and other franchisee services.
(1)
Installation of drops. A subscriber's preference
as to the point of entry into a residence shall be observed whenever feasible.
Runs in building interiors shall be as unobtrusive as possible. A franchisee
shall use due care in the process of installation and shall repair any damage
to a subscriber's property caused by said installation. Such restoration
shall be undertaken within thirty (30) days after the damage is incurred and
shall be completed as soon as reasonably possible thereafter.
(2)
Location of drops. In locations where a franchisee's
system must be underground, drops must be placed underground as well. In all
cases where new developments and subdivisions are to be constructed and to
be served in whole or in part by underground power and telephone utilities,
the owner or developer of such areas shall provide reasonable notice to the
franchisee of the availability of trenches, backfill and specifications of
all necessary substructures in order that the franchisee may install all necessary
cable facilities. In no event shall such undergrounding be at any cost or
expense to the city.
(3)
Time for extension/installation. Where a franchisee is required under § 45-6 to provide service to a person who resides within two hundred fifty (250) feet from the franchisee's distribution system, the franchisee must provide such service within seven (7) business days of the person's request. If the person resides more than one hundred twenty-five (125) feet from the franchisee's distribution system, the city may waive this seven-day requirement upon a showing of good cause by the franchisee, and provided that the franchisee specifies the time period within which service will be provided. This standard shall be met ninety-five percent (95%) of the time, measured on a quarterly basis.
(4)
Antennas and antenna switches. A franchisee shall adhere
to FCC regulations regarding antenna switches. A franchisee shall not, as
a condition to providing cable service, require any subscriber or potential
subscriber to remove any existing antenna structures for the receipt of over-the-air
television signals.
(5)
Delinquent accounts. A franchisee shall use its best
efforts to collect on delinquent subscriber accounts before terminating service.
In all cases, the franchisee shall provide the customer with at least ten
(10) working days' written notice prior to disconnection.
C.
Telephone and office availability.
(1)
Each franchisee shall maintain offices at convenient
locations within Prince George's County, as specified in its franchise
agreement, that shall be open during normal business hours to allow subscribers
to request service, pay bills and conduct other business.
(2)
Each franchisee will maintain at least one (1) local,
toll-free or collect call telephone access line which will be available to
subscribers twenty-four (24) hours a day, seven (7) days a week. Trained representatives
of a franchisee shall be available to respond to subscriber telephone inquiries
during normal business hours.
(3)
Each franchisee shall be subject to the following standards,
except that such franchisee shall not be subject to penalty as long as it
meets such standards under normal operating conditions at least ninety percent
(90%) of the time, measured quarterly.
(a)
Telephone answering time shall not exceed thirty (30)
seconds, and the time to transfer the call to a customer service representative
(including hold time) shall not exceed an additional thirty (30) seconds.
(b)
A customer will receive a busy signal less than three
percent (30%) of the time.
(c)
When the business office is closed, an answering service
where a person receives and records service complaints and inquiries shall
be employed. Inquiries received after hours must be responded to by a trained
representative of a franchisee on the next business day. To the extent possible,
the after-hours answering service shall comply with the same telephone answer
time standard set forth in this section.
(4)
In any case, at all times a franchisee shall provide
an answering machine so that callers will have the option to leave messages.
(5)
A franchisee must hire sufficient competent customer
service representatives and repair technicians so that it can adequately respond
to customer inquiries, complaints and requests for service in its office,
over the phone and at a subscriber's residence; provide prompt and effective
service to subscribers; and, as a rule, complete repairs within a subscriber's
home upon a single visit.
D.
Scheduling and completing service. Under normal operating
conditions, each of the following standards shall be met by all franchisees
at least ninety-five percent (95%) of the time, as measured on a quarterly
basis:
(1)
Prompt service. Excluding conditions beyond the control
of the franchisee, repairs and maintenance for service interruptions must
begin promptly and, in no event, later than twenty-four (24) hours after the
subscriber reports the problem to the franchisee or its representative or
the interruption or need for repairs otherwise becomes known to the franchisee.
All such work must be completed within three (3) days from the date of the
initial request, except installation requests, provided that a franchisee
shall complete the work in the shortest time possible where, for reasons beyond
the franchisee's control, the work could not be completed in those time
periods even with the exercise of all due diligence; the failure of a franchisee
to hire sufficient staff or to properly train its staff shall not justify
a franchisee's failure to comply with this provision.
(2)
Service times. Each franchisee shall perform service
calls, installations and disconnects at least during normal business hours.
In addition, maintenance service capability enabling the prompt location and
correction of major system malfunctions shall be available Monday through
Friday from the end of normal business hours until 12:30 a.m., and from 8:00
a.m. until 12:30 a.m. on Saturdays, Sundays and holidays.
(3)
Appointments. The appointment window for installations,
service calls and other installation activities will be either a specific
time or, at maximum, a two-hour time block during normal business hours or
such greater time as the city may authorize. Where a subscriber cannot conveniently
arrange for a service call or installation during normal business hours, a
franchisee shall also schedule service and installation calls outside normal
business hours for the express convenience of the subscriber.
(4)
Cancellations. A franchisee may not cancel an appointment
with a subscriber after the close of business on the business day preceding
the appointment. If a franchisee's representative is running late for
an appointment with a subscriber and will not be able to keep the appointment
as scheduled, the subscriber will be contacted and the appointment rescheduled,
as necessary, at a time which is convenient for the subscriber.
(5)
Emergency maintenance. A franchisee shall keep an emergency
system maintenance and repair staff, capable of responding to and repairing
system malfunctions or interruptions on a twenty-four-hour basis.
(6)
Other inquiries. Under normal operating conditions, billing
inquiries and requests for service, repair and maintenance not involving service
interruptions must be acknowledged by a trained customer service representative
within twenty-four (24) hours or prior to the end of the next business day,
whichever is earlier. A franchisee shall respond to all other inquiries within
five (5) business days of the inquiry or complaint.
(7)
If a subscriber experiences a missed appointment due
to the fault of a franchisee, the franchisee shall credit the subscriber's
account twenty dollars ($20.) for each missed appointment or grant the subscriber
such other equivalent remedy as the subscriber and franchisee may agree. This
is in addition to any other penalties or liquidated damages.
(8)
Upon subscriber request, each franchisee shall arrange
for pickup and/or replacement of converters or other franchisee equipment
at the subscriber's address or by a satisfactory equivalent (such as
the provision of a postage-prepaid mailer). At a subscriber's request,
a franchisee shall make such pickup or replacement at the same time as any
disconnection or other related service call so as to avoid an additional visit.
If a franchisee charges a fee for such pickup or replacement, such fee shall
be clearly disclosed at the time of the subscribers request.
E.
Interruptions of service.
(1)
A franchisee shall, when practicable, schedule and conduct
maintenance on its cable system so that interruption of service is minimized
and occurs during periods of minimum subscriber use of the cable system. The
franchisee shall provide reasonable prior notice to subscribers and the city
before interrupting service for planned maintenance or construction, except
where such interruption is expected to be one (1) hour or less in duration.
Such notice shall be provided by methods reasonably calculated to give subscribers
actual notice of the planned interruption.
(2)
A franchisee may intentionally interrupt service on the
cable system after 7:00 a.m. and before 1:00 a.m. only with good cause and
for the shortest time possible and, except in emergency situations, only after
publishing notice of service interruption at least twenty-four (24) hours
in advance of the service interruption. Service may be intentionally interrupted
between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance and repair,
without notification, any night except Friday, Saturday or Sunday or the night
preceding a holiday.
F.
Notice to subscribers.
(1)
Unless otherwise provided for herein, a franchisee shall
provide the following materials to each subscriber at the time cable service
is installed, at least annually thereafter, and at any time upon request.
Copies of all such materials provided to subscribers shall also be provided
to the city.
(a)
A written description of products and services offered,
including a schedule of rates and charges, a list of channel positions and
a description of programming services, options and conditions.
(b)
A written description of the franchisee's installation
and service maintenance policies, delinquent subscriber disconnect and reconnect
procedures and any other of its policies applicable to its subscribers.
(c)
Written instructions on how to use the cable service.
(d)
Written instructions for placing a service call.
(e)
A written description of the franchisee's billing
and complaint procedures, including the address and telephone number of the
city office responsible for receiving subscriber complaints.
(f)
A copy of the service contract, if any (at installation
or on request, but need not be provided annually).
(g)
Notice regarding subscribers' privacy rights pursuant
to 47 U.S.C. § 551.
(h)
Notice of the availability of universal remote controls
and other compatible equipment (a list of which, specifying brands and models,
shall be provided to any subscriber upon request).
(2)
Subscribers will be notified of any changes in rates,
programming services or channel positions and any significant changes in any
other information required to be provided by this section as soon as possible,
in writing, unless such notice is waived by operation of applicable law. Notice
must be given to subscribers a minimum of thirty (30) days in advance of such
changes if the change is within the control of the cable operator. Notwithstanding
the above, a cable operator shall not be required to provide prior notice
of any rate change that is the result of a regulatory fee, franchise fee or
any other fee, tax, assessment or charge of any kind imposed by any federal
agency, state or franchising authority on the transaction between the operator
and the subscriber.
(3)
All franchisee promotional materials, announcements and
advertising of residential cable service to subscribers and the general public,
where price information is listed in any manner, shall clearly and accurately
disclose price terms. In the case of pay-per-view or pay-per-event programming,
all promotional materials must clearly and accurately disclose price terms
and, in the case of telephone orders, a franchisee shall take appropriate
steps to ensure that price terms are clearly and accurately disclosed to potential
customers before the order is accepted.
(4)
Copies of all notices provided to subscribers under these
customer service standards, as well as all promotional or special offers made
to subscribers, and of any agreements used with subscribers shall be filed
promptly with the city.
G.
Billing.
(1)
Bills shall be clear, concise and understandable. Bills
must be fully itemized with itemizations including, but not limited to, basic
service, cable programming service and premium service charges and all equipment
charges. Bills shall clearly delineate all activity during the billing period,
including optional charges, rebates and credits.
(2)
Refund checks to subscribers shall be issued promptly,
but no later than the later of:
(3)
Credits for service shall be issued no later than the
subscriber's next billing cycle following the determination that a credit
is warranted.
(4)
A franchisee's first billing statement after a new
installation or service change shall be prorated as appropriate and shall
reflect any security deposit.
(5)
Late fees will not be assessed for payments after the
due date until forty-five (45) days after the beginning of the service period
for which the payment is to be rendered. In addition, subscribers will receive
the benefit of any change in the late fee amount and of any increases in the
time allowed before assessment of late fees that may result from litigation
over late fees pending as of the effective date of this chapter.
(6)
A franchisee must notify the subscriber that he or she
can remit payment in person at the franchisee's business office and inform
the subscriber of the address of that office.
(7)
Subscribers shall not be charged a late fee or otherwise
penalized for any failure by a franchisee, including failure to timely or
correctly bill the subscriber or failure to properly credit the subscriber
for a payment timely made.
(8)
A subscriber who asks a franchisee for credit for an
outage shall receive credit for the actual time period of the outage as a
pro rata fraction of the monthly charges for any outage lasting between two
(2) and six (6) hours, without reference to the time the subscriber contacts
the franchisee. A subscriber shall receive credit for one (1) full day's
monthly charges for any outage of between six (6) and twenty-four (24) hours,
whether or not the subscriber reports such an outage, if the franchisee becomes
aware of such outages, either through reports by subscribers or otherwise.
Each franchisee shall place a message in subscribers' bills at least
quarterly, explaining how to report an outage, how to obtain a credit and
under what conditions credits are available. A franchisee shall also establish
a mechanism by which subscribers may reliably and immediately contact the
franchisee by telephone and report an outage for credit purposes, either by
ensuring that they can reliably and immediately reach a live person or by
another method (for example, by leaving a voice message or entering the subscriber's
telephone number). Upon receiving such reports, the franchisee promptly contact
the subscriber to confirm that the report has been received and apply the
credit to the subscriber's bill unless the franchisee reasonably concludes
that the subscriber's report is false.
(9)
A franchisee shall respond to all written billing complaints
from subscribers within thirty (30) days.
H.
Disconnection/downgrades.
(1)
A subscriber may terminate service at any time.
(2)
A franchisee shall promptly disconnect or downgrade any
subscriber. No period of notice prior to voluntary termination or downgrade
of service may be required of subscribers by any franchisee. So long as the
subscriber returns or permits the franchisee to retrieve any equipment necessary
to receive a service within five (5) business days of the disconnection, no
charge may be imposed by any franchisee for any cable service delivered after
the date of the disconnect request.
(3)
A subscriber may be asked, but not required, to disconnect
a franchisee's equipment and return it to the business office.
(4)
Any funds due the subscriber shall be refunded on disconnected
accounts after any customer premises equipment provided by the franchisee
has been recovered by the franchisee. The refund must be made within thirty
(30) days or by the end of the next billing cycle, whichever is earlier, from
the date disconnection was requested (or, if later, the date on which any
customer premises equipment provided by the franchisee is returned).
(5)
If a subscriber fails to pay a monthly subscriber fee
or other fee or charge, a franchisee may disconnect the subscriber's
service; however, such disconnection shall not be effected until at least
forty-five (45) days after the bill is due, plus at least ten (10) days'
advance written notice to the subscriber in question of intent to disconnect,
but in no event before the date when the franchisee would be entitled to charge
a late fee. If the subscriber pays all amounts due, including late charges,
before the date scheduled for disconnection, the franchisee shall not disconnect
service. After disconnection, upon payment by the subscriber in full of all
proper fees or charges, including the payment of the reconnection charge,
if any, the franchisee shall promptly reinstate service.
(6)
A franchisee may immediately disconnect a subscriber
if the subscriber is damaging or destroying the franchisee's cable system
or equipment. After disconnection, the franchisee shall restore service after
the subscriber provides adequate assurance that it has ceased the practices
that led to disconnection and paid all proper fees and charges, including
any reconnect fees and amounts owed the franchisee for damage to its cable
system or equipment.
(7)
A franchisee may also disconnect a subscriber that causes
signal leakage in excess of federal limits. A franchisee may disconnect a
subscriber without notice where signal leakage is detected originating from
the subscriber's premises in excess of federal limits, provided that
the franchisee shall immediately notify the subscriber of the problem and,
once the problem is corrected, reconnect the subscriber.
(8)
The disposition of cable home wiring in residential single-family
homes shall be governed by FCC rules regarding cable home wiring as of December
1, 1998.
(9)
A franchisee shall reconnect service to customers wishing
restoration of service, provided that such a customer shall first satisfy
any previous obligations owed.
I.
Changes in service.
(1)
At the time a franchisee alters the service it provides
to a class of subscribers, it must provide each subscriber thirty (30) days'
notice, explain the substance and full effect of the alteration and provide
the subscriber the right to opt to receive any combination of services thereafter
offered by a franchisee.
(2)
No charge may be made for any service or product that
the subscriber has not affirmatively indicated it wishes to receive.
J.
Parental control option. A franchisee shall make available
to any subscribers, upon request, the option of blocking the video or audio
portion of any channel or channels of programming entering the subscriber's
home. The control option described herein shall be made available to all subscribers
requesting it when any cable service is provided or reasonably soon thereafter.
K.
Enforcement.
(1)
A franchisee shall keep such records as are necessary
to show compliance with these customer service standards and FCC customer
service standards.
(2)
The city shall have the right to observe and inspect
a franchisee's customer service procedures.
(3)
Except as prohibited by federal law, a franchisee shall
be subject to penalties, forfeitures and any other remedies or sanctions available
under federal, state or local law, including, without limitation, this chapter
and a franchisee's franchise with the city, if it fails to comply with
the standards herein.
(4)
A franchisee shall not be subject to penalties or liquidated
damages as a result of any violations of these customer service standards
that are due to force majeure as characterized in its franchise agreement.
L.
Anticompetitive acts prohibited.
(1)
No franchisee or OVS operator shall demand the exclusive
right to provide cable service to a person or location as a condition of extending
cable service or a cable system. This provision is not intended and shall
not be interpreted to prohibit voluntary exclusive agreements to provide cable
service; to create any private cause of action for any person; or to prohibit
exclusive agreements permitted by federal law.
(2)
No franchisee or OVS operator shall engage in unfair
methods of competition or unfair or deceptive acts or practices, the purpose
or effect of which is to hinder significantly or to prevent any multichannel
video programming distributor, as defined in federal law, from providing cable
service or services similar to cable service in the city. This provision does
not apply to methods, acts or practices allowed by federal or state law. Any
allegation that a franchisee has engaged in methods, acts or practices that
would be prohibited by this subsection will be considered by the city only
after exhaustion of federal remedies. This subsection is not intended to create
a private cause of action.
A.
General authority. The city reserves the right to regulate
all rates and charges except to the extent it is prohibited from doing so
by law.
B.
Nondiscrimination.
(1)
Nondiscriminatory rates. Subject to applicable law, a
franchisee shall establish rates that are nondiscriminatory within the same
general class of subscribers and which must be applied fairly and uniformly
to all subscribers in the franchise area for all services. Nothing contained
herein shall prohibit a franchisee from offering, by way of illustration and
not limitation, discounts to senior citizens or economically disadvantaged
groups; discounts to commercial and multiple-family dwelling subscribers billed
on a bulk basis; promotional discounts; or reduced installation rates for
subscribers who have multiple services.
A.
Finding. The city finds that public rights-of-way of
the city to be used by a franchisee for the operation of a cable system are
valuable public property acquired and maintained by the city. The city further
finds that the grant of a franchise to use public rights-of-way is a valuable
property right without which a franchisee would be required to invest substantial
capital.
B.
Payment of franchise fee. Each franchisee shall pay a
franchise fee of five percent (5%) of gross revenues.
C.
Method of payment. The franchisee shall file with the
city, within thirty (30) days after the expiration of each of the franchisee's
fiscal quarters, a financial statement clearly showing the gross revenues
received by the franchisee during the preceding quarter. The quarterly portion
of the franchise fee shall be payable to the city at the time such statement
is filed.
D.
Not a tax or in lieu of any other tax or fee.
(1)
Payment of the franchise fee shall not be considered
in the nature of a tax or in lieu of other taxes or fees of general applicability
imposed by the city.
(2)
The franchise fee is in addition to all other taxes and
payments that a franchisee may be required to pay under its franchise agreement
or any federal, state or local law and to any other tax, fee or assessment
imposed by utilities and cable operators for use of their services, facilities
or equipment, including any applicable amusement taxes, except to the extent
that such fees, taxes or assessments must be treated as a franchise fee under
Section 642 of the Cable Act, 47 U.S.C. § 522.
(3)
No franchisee may designate the franchise fee as a tax
in any communication to a subscriber.
E.
Late payments. In the event that any franchise fee payment
or recomputation amount is not made on or before the required date, the franchisee
shall pay additional compensation and interest charges computed from such
due date, at an annual rate equal to the commercial prime interest rate of
the city's primary depository bank during the period such unpaid amount
is owed, in addition to any applicable penalties or liquidated damages.
F.
Audit.
(1)
The city shall have the right to inspect records, to
require a franchisee to provide copies of records at the franchisee's
expense and to audit and to recompute any amounts determined to be payable,
whether the records are held by the franchisee, an affiliate or any other
entity that collects or receives funds related to the franchisee's operation
in the city, including, by way of illustration and not limitation, any entity
that sells advertising on the franchisee's behalf, for a period of five
(5) years from the date a payment was made or, if no payment was made, from
the date the city believes payment was owed, after which time all payments
are final.
(2)
A franchisee shall be responsible for providing to the
city all records necessary to confirm the accurate payment of franchise fees,
without regard to by whom they are held. Such records shall be made available
pursuant to the requirements of this chapter. The franchisee shall maintain
such records for the term of its franchise agreement and any renewals or extensions
thereof.
(3)
The city's audit expenses shall be borne by the
city unless the audit discloses an underpayment of five percent (5%) or more
of the amount due, in which case the costs of the audit shall be borne by
the franchisee as a cost incidental to the enforcement of the franchise. Any
additional amounts due to the city as a result of the audit shall be paid
within thirty (30) days following written notice to the franchisee by the
city of the underpayment, which notice shall include a copy of the audit report.
If recomputation results in additional revenue to be paid to the city, such
amount shall be subject to an interest charge of ten percent (10%).
G.
No accord or satisfaction. No acceptance of any payment
by the city shall be construed as a release or an accord and satisfaction
of any claim the city may have for further or additional sums due or for the
performance of any other obligation of a franchisee or as an acknowledgment
that the amount paid is the correct amount due.
A.
Open books and records.
(1)
The city shall have the right to inspect records and
to require a franchisee to provide copies of records at the franchisee's
expense at any time during normal business hours at the city cable system
office for all books, receipts, maps, plans, contracts, service complaint
logs, performance test results, records of requests for service, computer
records, disks or other storage media and other like material which the city
deems appropriate in order to monitor compliance with the terms of this chapter,
its franchise agreement or applicable law. This includes not only the books
and records of a franchisee, but any books and records the city reasonably
deems relevant held by an affiliate, a cable operator of the cable system
or any contractor, subcontractor or any person holding any form of management
contract for the cable system. A franchisee is responsible for collecting
the information and producing it at the location specified above, and by accepting
its franchise, it affirms that it can and will do so. A franchisee will be
given reasonable advance written notice of any inspection request, which shall
serve as notice that any or all of the above materials may be inspected.
(2)
A franchisee shall maintain financial records that allow
analysis and review of its operations in each individual franchise area.
(3)
Access to a franchisee's records shall not be denied
by such franchisee on the basis that said records contain proprietary information.
Refusal to provide information required herein to the city shall be grounds
for revocation. All confidential information received by the city shall remain
confidential insofar as permitted by law.
(4)
A franchisee shall maintain a file of records open to
public inspection in accordance with applicable FCC rules and regulations.
(5)
Each report filed by a franchisee pursuant to this chapter
shall be certified by a corporate officer as accurate or complete.
B.
Communication with regulatory agencies.
(1)
If, and to the extent requested by the city, a franchisee
shall file with the city, in a form acceptable to the city, all reports and
materials submitted to the FCC, the Security and Exchange Commission or any
other federal or state regulatory commission or agency, including, but not
limited to, any proof of performance tests and results, Equal Employment Opportunity
reports and all petitions, applications and communications of all types regarding
the cable system or a group of cable systems of which the franchisee's
cable system is a part submitted by the franchisee, an affiliate or any other
person on the behalf of the franchisee.
C.
Annual report. Unless this requirement is waived in whole
or in part by the city, by April 1 of each year for the previous calendar
year, a franchisee shall submit a written report to the city, in a form directed
by the city, which shall include:
(1)
A summary of the previous year's activities in development
of the cable system, including, but not limited to, descriptions of services
begun or dropped, the number of subscribers gained or lost for each category
of service, the number of pay units sold, the amount collected annually from
users of the system and the character and extent of the services rendered
to such users, including leased access channel users.
(2)
A summary of complaints, identifying both the number
and nature of the complaints received and an explanation of their dispositions,
to the extent such records are kept by the franchisee. Where complaints involve
recurrent system problems, the nature of each problem and the corrective measures
taken shall be identified.
(3)
A report showing the number of service calls received
by type during the prior quarter and the percentage of service calls compared
to the subscriber base by type of complaint.
(4)
A certification of compliance with applicable customer
service standards. If a franchisee is in noncompliance with any standard during
any calendar quarter, it shall include in its annual filing a statement specifying
areas of noncompliance, the reason for the noncompliance and a remedial plan.
(5)
A copy of the franchisee's rules and regulations
applicable to subscribers of the cable system.
(6)
An annual statement showing the yearly gross revenues,
prepared and audited by a certified public accountant acceptable to the city.
(7)
An annual financial report for the previous calendar
year, audited and certified by an independent certified public accountant,
including year-end balance sheet; income statement showing subscriber revenue
from each category of service and every source of nonsubscriber revenue, line
item operating expenses, depreciation expense, interest expense and taxes
paid; statement of sources and applications of funds; capital expenditures;
and depreciation schedule.
(8)
An annual list of officers and members of the Board of
Directors or similar controlling body of the franchisee and any affiliates.
(9)
An organizational chart showing all corporations or partnerships
with more than a five-percent ownership interest in the franchisee and the
nature of that ownership interest (limited partner, general partner, preferred
shareholder, etc.); and showing the same information for each corporation
or partnership that holds such an interest in the corporations or partnerships
so identified and so on until the ultimate corporate and partnership interests
are identified.
(10)
An annual report and SEC 10(k) filing for each entity identified in Subsection C(8) of this section that generates such documents.
(11)
A summary of the results of and/or, at the franchisee's
option, copies of the system's technical tests and measurements performed
during the past year.
(12)
A detailed copy of updated maps depicting the location
of all cable plants, showing areas served and locations of all trunk lines
and feeder lines in the city and including changes in all such items for the
period covered by the report.
(13)
A full schedule of all subscriber and other user rates,
fees and charges.
(14)
Such other information as the city may direct.
D.
Monthly report. Unless this requirement is waived in
whole or in part by the city, no later than ten (10) days after the end of
each month, a franchisee shall submit a written report to the city regarding
the preceding month, in a form acceptable to the city, which shall include:
(1)
The active system plant in miles, specifying aerial and
underground mileage.
(2)
The new system segments built, in miles, if any, specifying
aerial and underground mileage.
(3)
The number of subscribers and the penetration rate for
each type of service and equipment offered.
(4)
The number of disconnects.
(5)
The number of outages, identifying separately:
(a)
Each outage; whether planned or unplanned; the time it
occurred, its duration, when the franchisee responded and when the outage
was corrected; the estimated area and a description of the subscribers affected;
(b)
In addition, for each unplanned outage: its cause and
the number of subscribers affected; and
(c)
The total hours of outages as a percentage of total hours
of cable system operation.
(6)
The number of cases in which installation was not provided
within the time established in this chapter.
(7)
The average telephone answering and hold times and the
number of instances in which those telephone answering and hold times exceeded
the time limits established in this chapter.
(8)
The percentage of customer calls that received a busy
signal.
(9)
The average and minimum number of customer service representatives
on the franchisee's staff for telephone answering purposes.
(10)
The number of times in which interruptions of service
under Section 9.(e) was not in compliance with the times established in this
chapter.
(11)
The number of times scheduling and completing customer
service did not occur in accordance with Section 9.(d)(3).
E.
Special reports. Unless this requirement is waived in
whole or in part by the city, the franchisee shall deliver the following special
reports to the city:
(1)
A franchisee shall submit quarterly construction reports
to the city after the franchise is awarded for any construction undertaken
during the term of the franchise until such construction is complete, including
any rebuild that may be specified in the franchise. The franchisee must submit
to the city as part of the quarterly construction report, or make available
for inspection with notice of their availability as part of the quarterly
construction report, updated as-built system design maps depicting construction
completed in the previous quarter. The maps shall be developed on the basis
of postconstruction inspection by the franchisee and construction personnel
to assess compliance with system design. Any departures from design must be
indicated on the as-built maps to assist the city in assessing operator compliance
with its obligations.
(2)
A franchisee must submit a copy of any notice of deficiency, forfeiture or other document issued by any state or federal agency instituting any investigation or civil or criminal proceeding regarding the cable system, the franchisee or any affiliate of the franchisee to the extent the same may affect or bear on operations in the city. This material shall be submitted in accordance with the deadlines specified in Subsection B(2) herein.
(3)
The franchisee must submit a copy of any request for protection under bankruptcy laws or any judgement related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly. This material shall be submitted in accordance with the deadlines specified in Subsection B(2) herein.
F.
Additional reports. A franchisee shall provide such other
information or reports as the city may request for the purpose of enforcing
any provision of the franchise agreement or this chapter.
G.
Records required.
(1)
The franchisee shall at all times maintain:
(a)
Records of all complaints received. The term "complaints,"
as used herein and throughout an agreement, refers to complaints about any
aspect of the cable system or the franchisee's operations, including,
without limitation, complaints about employee courtesy. Complaints recorded
may not be limited to complaints requiring an employee service call.
(b)
A full and complete set of plans, records and as-built
maps showing the exact location of all system equipment installed or in use
in the city, exclusive of subscriber service drops.
(c)
A comprehensive record of all personnel transactions
and utilization of contractors, subcontractors, vendors and suppliers by race
and sex.
(d)
Records of outages, indicating date, duration, area and
the subscribers affected, type of outage and cause.
(e)
Records of service calls for repair and maintenance indicating
the date and time service was required, the date of acknowledgement and date
and time service was scheduled (if it was scheduled) and the date and time
service was provided and (if different) the date and time the problem was
solved.
(f)
Records of installation/reconnection and requests for
service extension, indicating date of request, date of acknowledgement and
the date and time service was extended.
(g)
A public file showing its plan and timetable for construction
of the cable system.
H.
Performance evaluation.
(1)
The city may, at its discretion, hold performance evaluation
sessions. All such evaluation sessions shall be open to the public. The franchisee
may be required by the city to notify subscribers of all such evaluation sessions
by announcement on a designated local access channel on the system between
the hours of 9:00 a.m. and 9:00 p.m. for five (5) consecutive days preceding
each session.
(2)
Topics that may be discussed at any evaluation session
may include, but are not limited to, system performance and construction,
franchisee compliance with this chapter and its franchise agreement, customer
service and complaint response, subscriber privacy, services provided, programming
offered, service rate structures, franchise fees, penalties, free or discounted
services, applications of new technologies, judicial and FCC filings and line
extensions.
(3)
During the evaluation process, the franchisee shall fully
cooperate with the city and shall provide such information and documents as
the city may need to reasonably perform its review, including information
and documents that may be considered proprietary or confidential.
I.
Voluminous materials. If any books, records, maps or
plans or other requested documents are too voluminous or, for security reasons,
cannot be copied and moved, then the franchisee may request that the inspection
take place at some other location, provided that the franchisee must make
necessary arrangements for copying documents selected by the city after review;
and the franchisee must pay all travel and additional copying expenses incurred
by the city in inspecting those documents or having those documents inspected
by its designee.
J.
Retention of records; relation to privacy rights. The
franchisee shall take all steps that may be required to ensure that it is
able to provide the city all information which must be provided or may be
requested under this chapter or its franchise agreement, including providing
appropriate subscriber privacy notices. Nothing in this section shall be read
to require the franchisee to violate 47 U.S.C. § 551. Each franchisee
shall be responsible for redacting any data that federal law prevents it from
providing to the city. The city retains the right to question any such redaction
and to challenge it in any forum having jurisdiction over such a challenge.
Records shall be kept for at least five (5) years.
A.
Insurance required.
(1)
The franchisee shall maintain, and by its acceptance
of the franchise specifically agrees that it will maintain, throughout the
entire length of the franchise period at least the following liability insurance
coverage insuring the city and the franchisee: worker's compensation
and employer liability insurance to meet all requirements of Maryland law
and comprehensive general liability insurance with respect to the construction,
operation and maintenance of the cable system and the conduct of the franchisee's
business in the city, in the following minimum amounts, but in any event no
less than the liability limits specified by the Local Government Tort Claims
Act:
(a)
Five hundred thousand dollars ($500,000.) for property
damage resulting from any one (1) accident; one million dollars ($1,000,000.)
for property damage aggregate;
(b)
One million dollars ($1,000,000.) for personal bodily
injury or death for one (1) person; two million dollars ($2,000,000.) for
bodily aggregate per single accident and occurrence;
(c)
A general comprehensive public liability policy indemnifying,
defending and saving harmless the city, its officers, boards, commissions,
agents or employees from any and all claims by any person whatsoever on account
of injury to or death of a person or persons occasioned by the operations
of the franchisee under the franchise herein granted or alleged to have been
so caused or occurred, with a minimum liability of one million dollars ($1,000,000.)
per personal injury or death of any one (1) person and two million dollars
($2,000,000.) for personal injury or death of two (2) or more persons in any
one (1) occurrence;
(d)
Two million dollars ($2,000,000.) for all other types
of liability; and
(e)
Automobile liability insurance for owned or leased vehicles
in the minimum amount of two million dollars ($2,000,000.) for bodily injury
and consequent death per occurrence, one million dollars ($1,000,000.) for
bodily injury and consequent death to any one (1) person and five hundred
thousand dollars ($500,000.) for property damage per occurrence.
(2)
Such general liability insurance must include coverage
for all of the following: all risks from premises-operations, explosion and
collapse hazard, underground hazard, products/completed operations hazard,
contractual insurance, broad form property damage and personal injury,
(3)
The city may review these amounts no more than once a
year and may require reasonable adjustments to them consistent with the public
interest.
B.
Endorsements.
(1)
All insurance policies and certificates maintained pursuant
to a franchise agreement shall contain the following endorsement:
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It is hereby understood and agreed that this insurance coverage may
not be canceled by the insurance company nor the intention not to renew be
stated by the insurance company until thirty (30) days after receipt by the
city's Secretary or Clerk, by registered mail, of a written notice of
such intention to cancel or not to renew.
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(2)
All contractual liability insurance policies and certificates
maintained pursuant to a franchise agreement shall include the provision of
the following hold harmless clause:
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The Company agrees to indemnify, save harmless and defend each municipality,
its agents, servants and employees, and each of them against and hold it and
them harmless from any or all lawsuits, claims, demands, liabilities, losses
and expenses, including court costs and reasonable attorney's fees for
or on account of any injury to any person, or any death at any time resulting
from such injury or any damage to any property, which may arise or which may
be alleged to have risen out of or in connection with the work covered by
this agreement. The foregoing indemnity shall apply except if such injury,
death or damage is caused directly by the negligence or other fault of the
city, its agents, servants or employees or any other person indemnified hereunder.
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C.
Qualifications of sureties. All insurance policies shall
be with sureties qualified to do business in the State of Maryland, with an
A-1 or better rating of insurance by Best's Key Rating Guide, Property/Casualty
Edition, and in a form acceptable to the city.
D.
Policies available for review. All insurance policies
shall be available for review by the city, and the franchisee shall keep on
file with the city certificates of insurance.
E.
Additional insureds; prior notice of policy cancellation.
All general liability insurance policies shall name the city, its officers,
boards, commissions, commissioners, agents and employees as additional insureds
and shall further provide that any cancellation or reduction in coverage shall
not be effective unless thirty (30) days' prior written notice thereof
has been given to the city. A franchisee shall not cancel any required insurance
policy without submission of proof that it has obtained alternative insurance
satisfactory to the city which complies with its franchise agreement.
F.
Failure constitutes material violation. Failure to comply
with the insurance requirements set forth in this section shall constitute
a material violation of a franchise.
G.
Indemnification.
(1)
A franchisee shall, at its sole cost and expense, indemnify,
hold harmless and defend the city, its officials, boards, commissions, commissioners,
agents and employees against any and all claims, suits, causes of action,
proceedings and judgements for drainages arising out of the construction,
maintenance or operation of its cable system; copyright infringements or a
failure by the franchisee to secure consents from the owners, authorized distributors
or franchisees of programs to be delivered by the cable system; the conduct
of the franchisee's business in the city; or in any way arising out of
the franchisee's enjoyment or exercise of the franchise, regardless of
whether the act or omission complained of is authorized, allowed or prohibited
by this chapter or its franchise agreement.
(2)
Specifically, a franchisee shall fully indemnify, defend
and hold harmless the city and, in its capacity as such, the officers, agents
and employees thereof, from and against any and all claims, suits, actions,
liability and judgements for damages or otherwise subject to 47 U.S.C. § 558
arising out of or alleged to arise out of the installation, construction,
operation or maintenance of the system, including, but not limited to, any
claim against the franchisee for invasion of the right of privacy, defamation
of any person, firm or corporation or the violation or infringement of any
copyright, trademark, trade name, service mark or patent or of any other right
of any person, firm or corporation. This indemnity does not apply to programming
carried on any channel set aside for PEG use or channels leased pursuant to
47 U.S.C. § 532, except that this indemnity shall apply to any actions
taken by a franchisee pursuant to 47 U.S.C. § 531(e) or 47 U.S.C.
§ 532(c)(2) concerning the programming carried on PEG or leased
access channels or an institutional network.
(3)
The indemnity provision includes, but is not limited
to, the city's reasonable attorneys' fees incurred in defending
against any such claim, suit or proceeding, in addition to the reasonable
value of any services rendered by the City Attorney or city staff or employees.
H.
No limit of liability. Neither the provisions of this
section nor any damages recovered by the city shall be construed to limit
the liability of the franchisee for damages under the franchise.
A.
Penalties.
(1)
For violation of provisions of this chapter or a franchise
agreement entered into pursuant to this chapter, penalties shall be assessable
against a franchisee and shall be chargeable to the franchisee's security
fund in any amount up to the limits specified below, at the city's discretion:
(a)
For failure to submit any required plans indicating expected
dates of installation of various parts of the system: four hundred dollars
($400.) per day for each violation for each day the violation continues.
(b)
For failure to commence operations in accordance with
the requirements of the franchise agreement: one thousand dollars ($1,000)
per day for each violation for each day the violation continues after a thirty-day
cure period, if the franchisee has not undertaken substantial corrective action
to cure the violation within that thirty-day period.
(c)
For failure to substantially complete construction in
accordance with a franchisee's franchise agreement: one thousand dollars
($1,000.) per day for each violation for each day the violation continues
after a thirty-day cure period, if the franchisee has not undertaken substantial
collective action to cure the violation within that thirty-day period.
(d)
For transferring the franchise without approval: two
thousand dollars ($2,000.) per day for each violation for each day the violation
continues.
(e)
For failure to comply with requirements for public, educational
and governmental use of the system: one thousand dollars ($1,000.) per day
for each violation for each day the violation continues after a fourteen-day
cure period, if the franchisee has not undertaken substantial corrective action
to cure the violation within that fourteen-day period.
(f)
For failure to supply information, reports or filings
lawfully required under the franchise agreement or applicable law or by the
city: five hundred dollars ($500.) per day for each violation for each day
the violation continues after a thirty-day cure period, which shall begin
to run on the due date of any regularly scheduled report and on the date of
a deadline reasonably set by the city for any report or information request
not regularly scheduled, unless the franchisee shows that it was not, in fact,
aware of the requirement in question, in which case the thirty-day cure period
shall begin to run upon written notice of such requirement by the city to
the franchisee.
(g)
For violation of customer service standards or failure
to file a compliance certification or noncompliance statement as required
herein: two hundred dollars ($200.) per day or per event, as applicable.
(h)
For failure to pay franchise fees or liquidated damages:
one hundred dollars ($100.) per day, in addition to any monetary payment due
under a franchise agreement or this chapter, for each violation for each day
the violation continues after a seven-day cure period, if the franchisee has
failed to make payment within that seven-day period, provided that these penalties
shall be in addition to any late fees that may apply.
(i)
For failure to file, obtain or maintain any required
security fund in a timely fashion: two hundred dollars ($200.) per day.
(j)
For failure to restore damaged property: two hundred
dollars ($200.) per day, in addition to the cost of the restoration and any
other penalties or fees as required elsewhere herein or in a franchise agreement,
for each day the violation continues after a thirty-day cure period, if the
franchisee has not undertaken substantial corrective action to cure the violation
within that thirty-day period.
(k)
For violation of technical standards established by the
FCC: one hundred dollars ($100.) per day for each day the violation continues
after a thirty-day cure period after the city gives the franchisee notice
of such violation.
(l)
For knowingly and intentionally signing a false report
or statement: one thousand dollars ($1,000.) per report or document.
(m)
For any other violations of this chapter, a franchise
agreement or other applicable law: five hundred dollars ($500.) per day for
each violation for each day the violation continues.
(2)
The franchisee shall pay any penalty assessed in accordance
with this chapter within fourteen (14) days after receipt of notice from the
city of such penalty.
(3)
To the extent that penalties are applied to a franchisee under this Subsection A, a franchisee shall not be subject to liquidated damages payable to the city for the same violation.
(4)
The city may reduce or waive any of the above-listed
penalties for good cause shown.
(5)
Pending litigation or any appeal to any regulatory body
or court having jurisdiction over a franchisee shall not excuse the franchisee
from the performance of its obligations under this chapter or its franchise
agreement unless a stay is obtained or the franchisee is otherwise excused
from performance by operation of law. Failure of the franchisee 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.
B.
Termination on account of certain assignments or appointments.
(1)
Any franchise shall be deemed revoked one hundred twenty
(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 city's sole discretion if, 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 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.
(2)
Notwithstanding the foregoing, in the event of foreclosure
or other judicial sale of any of the facilities, equipment or property of
a franchisee, the city may revoke the franchise, following a public hearing,
by serving notice on the franchisee and the successful bidder, in which event
the franchise and all rights and privileges of the franchise will be revoked
and will terminate thirty (30) calendar days after serving such notice, unless:
(a)
The city has approved the transfer of the franchise to
the successful bidder; and
(b)
The successful bidder has covenanted and agreed with
the city 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.
C.
Remedies cumulative. All remedies under this chapter
and the franchise agreement are cumulative unless otherwise expressly stated.
The exercise of a remedy or the payment of liquidated damages or penalties
shall not relieve a franchisee of its obligations to comply with its franchise
or applicable law.
D.
Relation to insurance and indemnity requirements. Recovery
by the city of any amounts under insurance, the security fund, the performance
bond or letter of credit or otherwise does not limit a franchisee's duty
to indemnify the city in any way; nor shall such recovery relieve a franchisee
of its obligations under a franchise, limit the amounts owed to the city or
in any respect prevent the city from exercising any other right or remedy
it may have.
A.
City approval required.
(1)
A franchise granted under this chapter shall be a privilege
to be held in personal trust by the franchisee.
(2)
No transfer of a franchise, franchisee or cable system
or of control over the same (including, but not limited to, transfer by forced
or voluntary sale, merger, consolidation, receivership or any other means)
shall occur unless prior application is made by the franchisee to the city
and the city's prior written consent is obtained, pursuant to this chapter
and the franchise agreement, and only then upon such terms and conditions
as the city deems necessary and proper. Any such transfer without the prior
written consent of the city shall be considered to impair the city's
assurance of due performance. The granting of approval for a transfer in one
(1) instance shall not render unnecessary approval of any subsequent transfer.
B.
Approval does not constitute waiver. Approval by the
city of a transfer does not constitute a waiver or release of any of the rights
of the city under this chapter or a franchise agreement, whether arising before
or after the date of the transfer.
A.
Applicability of chapter.
(1)
This chapter shall apply to open video systems that comply with 47 U.S.C. § 573 to the extent permitted by applicable law, except that the following sections shall not apply: § 45-3A to C (regarding grant of franchise); § 45-4 (franchise applications); § 45-5 (filing fees); § 45-6 (provision of service); § 45-7A (construction schedule); § 45-10 (rate regulation); § 45-11B and C (regarding franchise fees); § 45-13F (failure to comply with insurance requirements a material violation of franchise); § 45-14A(1)(b) and (c) and (h) (certain penalties); § 45-14B (franchise termination due to bankruptcy).
(2)
In applying this chapter to an open video system, "franchisee"
shall be taken to refer to the open video system operator; "cable system"
to the open video system; and similar terms shall apply similarly.
C.
Public, educational and governmental access obligations.
An open video system operator shall be subject to obligations pertaining to
public, educational and governmental access pursuant to applicable law and
to the requirements herein.
D.
Right-of-way usage. An open video system operator shall
be subject to all requirements of state and local law regarding authorization
to use or occupy the public rights-of-way, except to the extent specifically
prohibited by federal law. FCC approval of an open video system operator's
certification pursuant to 47 U.S.C. § 573 shall not be taken to
confer upon such operator any authority to use or occupy the public rights-of-way
that such operator would not otherwise possess.
A.
Discriminatory practices prohibited.
(1)
A franchisee shall not deny service, deny access or otherwise
discriminate against subscribers, programmers or residents of the city on
the basis of race, color, religion, national origin, sex or age.
(2)
A franchisee shall not discriminate among persons or
take any retaliatory action against a person because of that person's
exercise of any right he or she may have under federal, state or local law,
nor may the franchisee require a person to waive such rights as a condition
of taking service.
(3)
A franchisee shall not deny access or levy different
rates and charges on any group of potential residential cable subscribers
because of the income of the residents of the local area in which such group
resides.
(4)
Subject to applicable law and except to the extent the
city may waive such a requirement, a franchisee is prohibited from discriminating
in its rates or charges or from granting undue preferences to any subscriber,
potential subscriber or group of subscribers or potential subscribers; provided,
however, that a franchisee may offer temporary, bona fide promotional discounts
in order to attract or maintain subscribers, so long as such discounts are
offered on a nondiscriminatory basis to similar classes of subscribers throughout
the city; and a franchisee may offer discounts for the elderly, the handicapped,
not-for-profit persons or organizations or the economically disadvantaged
and other discounts in conformance with federal law, if such discounts are
applied in a consistent and nondiscriminatory manner, and provided that a
franchisee may provide such other bulk discounts as are permitted by the cable
uniform rate structure provisions of federal law as they may exist from time
to time. A franchisee shall comply at all times with all applicable federal,
state and city laws and all executive and administrative orders relating to
nondiscrimination.
(5)
Information accessibility. Each document required to
be maintained, filed or submitted under the provisions of this chapter or
a franchise agreement, except those specifically designated as confidential
by a franchisee, subject to the city's review, pursuant to applicable
law, is a public document, available for public inspection and copying at
the requestor's expense, at the office of the franchisee or the city
during normal business hours.
B.
Equal employment opportunity. A franchisee shall not
refuse to employ, discharge from employment or discriminate against any person
in compensation or in terms, conditions or privileges of employment because
of race, color, religion, national origin, sex or age. A franchisee shall
comply with all federal, state and local laws and regulations governing equal
employment opportunities, as the same may be from time to time amended.
C.
Subscriber privacy.
(1)
A franchisee shall at all times protect the privacy rights
of all subscribers, including, but not limited to, those rights secured by
the provisions of Section 631 of the Cable Act, 47 U.S.C. § 551.
(2)
The franchisee shall not permit the transmission of any
signal, aural, visual or digital, including polling the channel selection,
from any subscriber's premises without first obtaining such subscriber's
valid authorization. Neither the franchisee nor any other person shall initiate
in any form the discovery of any information on or about an individual subscriber's
premises without prior valid authorization from the subscriber potentially
affected. This provision is not intended to prohibit the transmission of signals
useful only for the control or measurement of system performance or for detection
of theft of service.
(3)
The franchisee shall not permit the installation of any
special terminal equipment in any subscriber's premises that will permit
transmission from such subscriber's premises of two-way services utilizing
aural, visual or digital signals without such subscriber's prior valid
authorization.
(4)
The franchisee shall strictly observe and protect the
rights of privacy and property rights of subscribers and users at all times.
Individual subscriber preferences of any kind, viewing habits, political,
social or economic philosophies, beliefs, creeds, religions or names, addresses
or telephone numbers shall not be revealed to any person, governmental unit,
police department or investigating agency unless upon the authority of a court
of law, a valid search warrant or subpoena or upon prior voluntary valid authorization
of the subscriber or as may be permitted by operation of law.
(5)
The franchisee shall not tabulate any test results that
would reveal the commercial product preferences or opinions of individual
subscribers, members of their families or their invitees, licensees or employees,
nor permit the use of the system for such tabulation, without the subscriber's
prior valid authorization.
(6)
A subscriber may at any time revoke any valid authorization
to release information by delivering to the franchisee, in writing, by mail
or otherwise, the subscriber's decision to revoke the authorization.
Any such revocation shall be effective upon receipt by the franchisee.
(7)
A franchisee shall not condition subscriber service on
the subscriber's valid authorization or grant or denial of permission
to collect, maintain or disclose personally identifiable information, except
to the extent that such information is necessary for credit check or billing
purposes.
It shall be unlawful for any person to attach or affix or to cause to
be attached or affixed any equipment or device that allows access or use of
the cable system without lawful payment to the franchise for same.
[ Any necessary administrative provisions may be inserted here.]
A.
Compliance with laws.
(1)
Each franchisee shall comply with all federal, state
and local laws and regulations heretofore and hereafter adopted or established
during the entire term of its franchise.
B.
No recourse against the city. Without limiting such immunities
as the city or other persons may have under applicable law, a franchisee shall
have no recourse whatsoever against the city or its officials, boards, commissions,
agents or employees for any loss, costs, expense or damage arising out of
any provision or requirement of this chapter or because of the enforcement
of this chapter or the city's exercise of its authority pursuant to this
chapter, a franchise agreement or other applicable law, unless the same shall
be caused by criminal acts or by willful or gross negligence.
C.
Rights and remedies.
(1)
The rights and remedies reserved to the city by this
chapter are cumulative and shall be in addition to and not in derogation of
any other rights and remedies which the city may have with respect to the
subject matter of this chapter.
(2)
The city hereby reserves to itself the right to intervene
in any suit, action or proceeding involving any provision of this chapter
or a franchise agreement.
(3)
Specific mention of the materiality of any of the provisions
herein is not intended to be exclusive of any others for the purpose of determining
whether any failure of compliance hereunder is material and substantial.
(4)
No franchisee shall be relieved of its obligation to
comply with any of the provisions of this chapter or a franchise agreement
by reason of any failure of the city to enforce prompt compliance. Nor shall
any inaction by the city be deemed to waive or void any provision of this
chapter or a franchise agreement.
D.
Amendments to this chapter. Notwithstanding any other
provision in this chapter or a franchise agreement, nothing in this chapter
or a franchise agreement shall preclude the city from exercising its police
powers to enact, amend or supplement any law or regulation governing cable
communications within the city.
E.
Public emergency. In the event of a major public emergency
or disaster as determined by the County Executive of Prince George's
County, a franchisee shall immediately make the entire cable system, employees
and property, as may be necessary, available for use by the city or other
civil defense or governmental agency designated by the city to operate the
system for the term of such emergency or disaster for the emergency purposes.
In the event of such use, a franchisee shall waive any claim that such use
by the city constitutes a use of eminent domain, provided that the city shall
return use of the entire system, employees and property to the franchisee
after the emergency or disaster has ended or has been dealt with.
F.
Connections to system; use of antennas.
(1)
Subscribers shall have the right to attach devices to
a franchisee's system and the right to use their own remote control devices
and converters and other similar equipment, consistent with FCC equipment
compatibility rules and other applicable law, and a franchisee shall provide
information to consumers which will allow them to adjust such devices so that
they may be used with the franchisee's system.
(2)
A franchisee shall not, as a condition of providing service,
require a subscriber or potential subscriber to remove any existing antenna
or disconnect an antenna or prohibit or discourage a subscriber from installing
an antenna switch, provided that such equipment and installations are consistent
with applicable codes and technically able to shield the cable system from
any interference.
G.
Calculation of time. Unless otherwise indicated, when
the performance or doing of any act, duty, matter or payment is required under
this chapter or any franchise agreement and a period of time or duration for
the fulfillment of doing thereof is prescribed and is fixed herein, the time
shall be computed so as to exclude the first and include the last day of the
prescribed or fixed period of duration time.
H.
Severability. If any term, condition or provision of
this chapter shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof shall be valid in all other respects and continue to
be effective. In the event of a subsequent change in applicable law so that
the provision which had been held invalid is no longer invalid, said provision
shall thereupon return to full force and effect without further action by
the city and shall thereafter be binding on the franchisee and the city.
