[HISTORY: Adopted by the Board of Supervisors of the County of Frederick 3-11-2009. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. 61, Cable Franchise, adopted 11-10-1993.
This chapter shall be known and may be cited as the "Cable Television Franchise Chapter."
Terms of the act not otherwise defined herein, whether capitalized or not, shall have the meanings ascribed to them in Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq. (hereinafter the "Communications Act").
When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.
The word "shall" is always mandatory and not merely directory.
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein:
- The Board of Supervisors of Frederick County, Virginia.
- CABLE TELEVISION SYSTEM or CABLE SYSTEM (sometimes hereinafter referred to as "system")
- The same meaning as ascribed to the term "cable system" in § 15.2-2108.19 of the Code of Virginia.
- The unincorporated portions of the County of Frederick, Virginia.
- The Federal Communications Commission or its successor.
- FRANCHISE AREA
- Unless otherwise provided in a franchise agreement, the entire geographic area of the County.
- The grantee of rights under a franchise granted pursuant to this chapter.
- GROSS REVENUES
- Unless otherwise provided by applicable law, all compensation and other consideration in any form derived directly or indirectly by a franchisee from or in connection with the operation of that franchisee's cable system to provide cable service.
- Any single-family dwelling unit, whether a house, apartment, trailer, rented room or otherwise.
- Any individual, firm, partnership, association, corporation, company, trust, governmental entity or organization of any kind.
- PUBLIC RIGHTS-OF-WAY
- The surface, the air space above the surface, and the area below the surface of any public street, avenue, highway, boulevard, concourse, driveway, bridge, tunnel, lane, alley or similar property within the County in which the County now or hereafter holds any property interest which, consistent with the purpose for which it was created, obtained or dedicated, may be used for the purpose of installing, operating 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 guarantee by the County that its interest or other right to control the use of such property is sufficient to permit use of the property for the purpose of installing, operating and maintaining a cable system. A franchisee shall be deemed to gain only those rights to use the property as are properly in the County, in the County's sole determination, and as the County may have the right and power to give.
- RESIDENTIAL SUBSCRIBER
- A purchaser in good standing of any service that the franchisee delivers to any home, provided that that service is not utilized in connection with a business, trade or profession.
- SENIOR CITIZEN
- Any residential subscriber who is 65 years of age or older.
- SERVICE AREA
- Any area in the County in which a franchisee is actually providing service, or that has a density of at least 25 homes per linear mile and is contiguous to an area in which the franchisee has installed its cable plant. For the purposes of this chapter, all homes within 150 feet from any public right-of-way suitable for cable trunk installation shall be counted in density determinations and shall be considered as being within the "service area" as defined herein. The County and a franchisee may, however, agree in a franchise agreement to such other and different numbers of homes per linear mile and distances from public right-of-way suitable for cable trunk installation.
- Any person or entity lawfully receiving any service provided by or carried on the franchisee's cable television system.
- The Virginia Department of Transportation.
The County shall have the authority, pursuant to § 15.2-2108.20 of the Code of Virginia, to grant one or more nonexclusive franchises, which shall authorize each respective franchisee to construct, erect, operate and maintain, in the public rights-of-way in the franchisee's franchise area, poles, wires, cable, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in such franchise area of a cable television system and to thereafter provide cable service within the franchise area, subject to such franchisee's agreement and obligation to provide cable service within the franchisee's service area and to otherwise comply with all provisions of this chapter and any agreement relating to the grant of the franchise.
No franchisee shall, as to rates, charges, service, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage, provided that nothing in any franchise granted hereunder shall be deemed to prohibit the establishment of a graduated scale of charges to senior citizen subscribers and for multiple installations at the same house or building. No franchisee or its officers, stockholders or employees shall engage in the business of sales, service, repair or installation of television and radio receiving equipment.
Any franchise granted hereunder as an initial authorization and any renewal thereof shall be governed by the provisions of the Communications Act and applicable state law, and any amendments or superseding legislation, and shall be for a term not to exceed 15 years.
The County specifically retains all rights to regulate rates charged by any franchisee for cable service, subject to the provisions of relevant federal and state legislation and the rules and regulations of applicable administrative agencies.
Every franchisee shall operate its cable system as required by the FCC's rules and regulations and shall ensure compliance with all applicable provisions of 47 CFR 76.605 (Technical Standards) and any amendments thereto throughout the entire service area. Every franchisee shall submit to the County copies of all proof-of-performance tests required pursuant to 47 CFR 76.601 within 30 days after completion of the same and any other performance tests that may be required by subsequent amendment of the FCC's rules and regulations.
Every franchisee, as a condition to its continued entitlement to hold a franchise hereunder, shall save the County harmless from all loss sustained by the County on account of any suit, judgment, execution, claim or demand whatsoever resulting from negligence on the part of the franchisee in the construction, operation or maintenance of its cable television system in the County.
Upon the granting of a franchise and following simultaneously with the filing of the acceptance required under § 61-17 hereof and at all times during the term of the franchise, the franchisee shall obtain, pay all premiums for and deliver to the County written evidence of payment of premiums for insurance policies providing for the types of coverage and policy limits specified in the franchise agreement. All policies shall be written by a company acceptable to the County, and the County shall be named as an additional insured thereunder. A certificate of these policies shall be furnished to the County as a condition to the grant of any franchise hereunder. The County reserves the right to require an increase in the amounts of coverage required by a franchise agreement by an amount not to exceed the amount of any increase in the consumer price index for each year after the adoption of this chapter.
All insurance policies called for herein shall be in a form satisfactory to the County Administrator. No insurance policy shall be cancelable. Insurance policies written for a period of less than the term of the franchise shall be renewed at least 60 days before a policy's expiration, and the renewed policies and evidence of premium payments shall be delivered forthwith to the County.
No grantee shall permit any policy to expire or approach less than 30 days prior to expiration without securing the delivery to the County of a substitute, renewal or replacement policy or bond in conformance with the provisions of this chapter.
The County may require insurance policies described in this section to run to the benefit of both the County, its officers, employees, and agents, and other governmental units located and/or operating within the County.
Throughout the term of its franchise, every franchisee shall maintain all parts of its cable system in good, working condition.
Unless otherwise provided in a franchisee's franchise agreement, every franchisee shall comply with the customer service obligations established by 47 CFR 76.309(c) or any successor customer service standards; provided, however, that no franchisee shall adopt standards less stringent than those imposed by 47 CFR 76.309(c) in effect on the date of this chapter without the express consent of the County. The County shall appoint a complaint officer to be directly responsible for assuring that all complaints have been satisfactorily resolved. Subject to notification and request by affected subscribers and to reasonable verification by a franchisee of a cable service outage, every franchisee shall rebate a pro rata portion of the fee charged to any subscriber for each calendar month in which such subscriber has experienced more than 24 hours of cable service outage, with the rebate being based on the total hours of outage compared to the total number of hours available in the month to which such rebate applies. Every franchisee shall keep a record in its offices of every complaint received and a memorandum of the same indicating the manner or disposition thereof. Complaint records shall be kept for two calendar years. The franchisee shall make information pertaining to its complaint records available to the County, the complaint officer or any other designees of the Board of Supervisors for review and inspection during normal business hours.
In addition to other filings that may be set forth herein, every franchisee shall file with the County Administrator, upon request, true and accurate maps or plats of all existing and proposed installations, and the County hereby reserves the right at all times to reject any proposed installation the manner or place of construction of which it deems contrary to public interest and may order and direct the franchisee to move the location or alter the construction of-any existing installation wherever the Board or VDOT deems it is in the public interest to require such removal or alteration, having due regard for the equities of the parties concerned and the purpose of a franchise granted hereunder, provided that the County shall reimburse a franchisee for removing or altering its facilities to the same extent the County reimburses telephone or electric utilities in similar circumstances.
Every franchisee shall file with the County Administrator a statement setting forth the names and addresses of all its directors and officers and the position that each holds. In the event of a change constituting a transfer of control of a franchisee or any change of directors, the franchisee shall promptly file information setting forth such change with the County Administrator.
In addition, every franchisee shall file with the County Administrator copies of rules, regulations, terms and conditions adopted by the franchisee for the conduct of its business and such other information as the County shall request with respect to the franchisee's service within the County.
An applicant for an initial or a renewal franchise hereunder shall include in its application all information requested by the County, subject to the provisions of governing law or regulations, as the County deems reasonably appropriate to allow it to evaluate such applicant's legal, financial and technical qualifications.
If an initial applicant proposes to serve an area then actually being served by an existing franchisee, the application shall be submitted with proof of service of a copy of its application upon such franchisee.
The County shall provide all existing franchisees on whom service is required under Subsection E above with an opportunity to be heard and to make presentations pertaining to such application.
In evaluating an application, the County shall be governed by and comply with all relevant federal and state statutes.
The County shall have the right to inspect all construction or installation work performed by a franchisee within the service area and to make such inspections as the County deems necessary to ensure compliance with the terms of this chapter, other pertinent provisions of law and any franchise granted hereunder. No poles, underground conduits or other wire-holding structures shall be erected by a franchisee without prior approval of the County or its duly authorized personnel or abutting property owners where the County does not own the area in which such are to be erected. To the extent possible, the franchisee shall negotiate agreements with the appropriate parties to permit it to utilize the existing poles and underground conduits throughout the County. Any poles, underground conduits or other fixtures that a franchisee is authorized by the County to install must be placed in a manner to not interfere with or obstruct the usual travel on the public streets or to interfere with any existing utility services. All construction activities of a franchisee shall be conducted in a manner that will cause minimum interference with the rights and reasonable convenience of the property owners directly affected thereby. Every franchisee shall maintain all structures, cable and related equipment that are located in, over, under and upon the streets in a safe, suitable, substantial condition and in good order and repair at all times.
All construction and installation by a franchisee shall be effectuated in a manner that is consistent with the FCC's rules, relevant local building codes, zoning and other regulatory requirements, the National Electrical Safety Code and other standards of general applicability to cable systems. No franchisee shall commence any construction without obtaining all local zoning and other approvals, permits and other licenses of general applicability to other entities performing such construction and paying all costs and fees normally imposed or charged therefor.
Every franchisee shall complete construction of its cable system to provide service to persons located within its service area within three years from the date such persons came into the franchisee's service area. Every franchisee shall extend energized trunk cable throughout its service area at the rate of at least 33 1/3% per year.
No franchisee shall be required to extend energized trunk cable in and/or through any portion of the County beyond and outside the limits of its service area; provided, however, that a franchisee may elect to provide cable service outside its defined service area. In the event that the owner of any home or other structure not within a franchisee's service area agrees, in writing, to pay the excess cost of extending cable service to that location, then a franchisee so requested by such owner shall provide cable service to such home or other structure, provided that such owner's payment obligation shall only apply to the costs incurred in extending cable more than 200 feet from any feeder line.
For the purposes of calculating the average density of an extension, the distance in linear miles shall be from the point of beginning of the line extension to the end of the line extension. The homes per linear mile calculation shall be the average number of homes per linear mile along the entire length of the extension.
Nonpayment by any owner of a home or other structure of costs associated with the immediately foregoing extension of service, once such owner has agreed to such payment, shall be a Class 4 misdemeanor and punishable as such.
In case of any disturbance of pavement, sidewalk, driveway or other surfacing, a franchisee shall, at its own cost and expense and in a manner approved by the County, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed in as good condition as before said work was commenced.
In the event that at any time during the period of a franchise the County or VDOT shall lawfully elect to alter or change the grade of any street, alley or other public way, the affected franchisee, upon reasonable notice by the County or the VDOT, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other telephone fixtures, provided that the County shall reimburse a franchisee for removal or relocation of its facilities to the same extent that the County reimburses telephone or electric utilities under similar circumstances.
No franchisee shall place any poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant, main or sewer, and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curbline, and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such a manner as not to interfere with the usual travel on said streets, alleys and public ways.
A franchisee shall, on the request of any person holding a building moving permit issued by the County, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than seven days' advance notice to arrange for such temporary wire changes.
Every franchisee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the County so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee, provided that all trimming shall be done under the supervision and direction of the County or the VDOT and at the expense of the franchisee. The County or VDOT specifically reserves the right to prohibit the trimming of trees where it deems that such trimming would damage or destroy the tree.
No franchisee shall install aboveground facilities in any portion of its service area where all public utility lines are underground, and every franchisee shall be obligated to use its best efforts to relocate its existing facilities underground in any portion of its service area within 90 days after all public utility lines in that portion of its service area have been placed underground.
This chapter shall not be construed to mean that the County, by granting any franchise hereunder, is giving any entity the right to use any right-of-way controlled by VDOT or by any person other than the County. Every franchisee hereunder shall be required to meet any and all VDOT regulations and requirements set forth for the use of such rights-of-way controlled by VDOT and shall be required to separately obtain from private parties and others necessary consents, not otherwise preempted by governing federal statute or regulation, to use any other rights-of-way not controlled by or vested in the County prior to the installation of any cable on, under or over the property so affected.
Except as otherwise provided by applicable law, including, without limitation, § 15.2-2108.19 of the Code of Virginia, no franchisee shall sell or transfer its plant or system to another person, nor transfer any rights under a franchise to another person, without Board approval upon such reasonable terms and conditions as it may impose. No such sale or transfer shall thereafter be effective until the vendee, assignee or lessee has filed in the office of the County Administrator an instrument, duly executed, reciting the fact of such sale, assignment or lease, accepting and agreeing to be bound by the provisions of this chapter and a franchise granted pursuant hereto and agreeing to perform all the conditions that may be imposed by the Board pursuant to its consent.
The right is hereby reserved by the County to adopt, in addition to the provisions herein contained and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of its police power.
The County shall have the right to supervise all construction or installation work performed by a franchisee subject to the provisions of this chapter and to make such inspections as it shall find necessary to ensure compliance with governing ordinances.
The County reserves the right to require a franchisee to comply with the emergency alert system requirements of the FCC, in order that emergency messages may be distributed over the franchisee's system.
All rights, rights-of-way and easements hereinabove designated shall remain the property of the County or VDOT. Until such time as poles or other equipment is actually installed by a franchisee, and in the event of future removal of said poles or other equipment, said rights shall remain vested or immediately revert to the County or VDOT, and, in the event of removal, a franchisee's rights therein shall be automatically canceled.
A franchisee shall provide a security fund in the form and amount specified by its franchise agreement.
A franchisee shall comply with the provisions of § 58.1-645 et seq. of the Code of Virginia, pertaining to the Virginia Communications Sales and Use Tax, as amended (the "communications tax"), and Subsections B through F of this section shall not have any effect, for so long as the Communications Tax or a successor state or local tax that would constitute a franchise fee for purposes of 47 U.S.C. § 542, as amended, is imposed on the sale of cable service by such franchisee to subscribers in the County.
In the event that the communications tax is repealed and no successor state or local tax is enacted that would constitute a franchise fee for purposes of 47 U.S.C. § 542, as amended, each franchisee shall pay to the County a Franchise fee of five percent (5%) of its gross revenues, beginning on the effective date of the repeal of such tax (the "repeal date"). Beginning on the repeal date, the terms of Subsections B through F of this section shall take effect. In accordance with Title VI of the Communications Act, the twelve-month period applicable under a franchise for the computation of the Franchise fee shall be a calendar year. Such payments shall be made no later than 30 days following the end of each calendar quarter. Should a franchisee submit an incorrect amount, the franchisee shall be allowed to add or subtract that amount in a subsequent quarter, but no later than 90 days following the close of the calendar year for which such amounts were applicable; such correction shall be documented in the supporting information required under Subsection C below.
Each franchise fee payment shall be accompanied by a brief report prepared by a representative of the franchisee showing the basis for the computation, and a breakdown by major revenue categories (such as basic service, premium service, etc.). The County shall have the right to reasonably request further supporting information for each franchise fee payment.
The period of limitation for recovery of any franchise fee payable hereunder shall be five years from the date on which payment by the grantee is due.
If cable services subject to the franchise fee required under Subsection B are provided to subscribers in conjunction with other services, the franchise fee shall be applied only to the value of the cable services, as reflected on the books and records of the grantee in accordance with FCC or State Corporation Commission rules, regulations, standards or orders. Any discounts resulting from purchasing the services as a bundle shall be reasonably allocated among the respective services that constitute the bundled transaction.
The County, or such person or persons designated by the County, shall have the right to inspect and copy records and the right to audit and to recompute any amounts determined to be payable under a franchise, without regard to by whom they are held. If an audit discloses an overpayment or underpayment of franchise fees, the County shall notify the grantee of such overpayment or underpayment within 90 days of the date the audit was completed. The County, in its sole discretion, shall determine the completion date for any audit conducted hereunder. Audit completion is not to be unreasonably delayed by either party.
Each franchisee shall be responsible for providing to the County all records necessary to confirm the accurate payment of franchise fees. Each franchisee shall maintain such records for five years. The County's audit expenses shall be borne by the County unless the audit determines the payment to the County should be increased by more than 5% in the audited period, in which case the costs of the audit shall be paid by the franchisee to the County within 30 days following written notice to the franchisee by the County of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional revenue to be paid by a franchisee to the County, such amount shall be subject to an interest charge of the prime rate plus 1%. If the audit determines that there has been an overpayment by a franchisee, the franchisee may credit overpayment against its next quarterly payment; and, the County shall waive the interest charge on any past-due amounts that were a result of such overpayment by the franchisee.
The County shall have access at all reasonable hours to all of a franchisee's plans, contracts and engineering, accounting, financial, statistical, customer and service records relating to the cable system and its operation by the franchisee and to all other records required to be kept hereunder.
The County may require that each applicant for an initial franchise compensate the County for its direct, out-of-pocket costs incurred in the award of a franchise hereunder, including the County's expenses incurred for special counsel or consultants retained to assist it in such award. A bill for such costs as are then determinable may be presented to the franchisee by the County upon the franchisee's filing of its acceptance of an initial franchise hereunder, and if so presented shall be paid at that time, and such additional costs as are determined as payable by the County shall thereafter be paid within 14 days of presentment to the franchisee.
No franchise shall be deemed as granted pursuant to this chapter unless such grant shall be approved by the Board and, within 14 days after such approval, the applicant therefor acknowledges, in a writing provided by the County, its acceptance of the provisions of this chapter and any additional conditions imposed in consideration of such grant and provides payment of all sums due hereunder and submits all documentation required herein.