Town of Ridgely, MD Chapter 81 Cable Television

[HISTORY: Adopted by the Commissioners of the Town of Ridgely as indicated in article histories. Amendments noted where applicable.]

Article I Rate Regulation

[Adopted 9-13-1993 by Ord. No. 125]

§ 81-1 Town to follow federal regulations.

The town[1] will follow the Federal Communications Commission (FCC) rate regulations in its regulation of the basic service rates and charges of the company[2] and any other cable television system operating in the town, notwithstanding any different or inconsistent provisions in the franchise.

[1] Editor's Note: References to "city" were changed to "town" throughout this article at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

[2] Editor's Note: The "company" refers to Marcus Cable.

§ 81-2 Town to consider views of interested parties.

In connection with such regulation, the town will ensure a reasonable opportunity for consideration of the views of interested parties.

§ 81-3 Filing of certification forms.

The President of the Commissioners of Ridgely, or his or her designee, is authorized to execute on behalf of the town and file with the FCC such certification forms or other instruments as are now or may hereafter be required by the FCC rate regulations in order to enable the town to regulate basic service rates and charges.

Article II Grant of Franchise

[Adopted 5-1-1995 by Ord. No. 130]

§ 81-4 Solicitation of proposals; franchise nonexclusive.

A. Solicitation of proposals for franchise. Any solicitation of proposals for granting a franchise hereunder by the town shall refer to and incorporate this article by reference.

B. Franchise nonexclusive. Any franchise granted hereunder shall not be exclusive, and the town reserves the right to grant a similar franchise to any person at any time, provided that the terms and conditions of such franchise are substantially similar to those awarded the grantee and do not result in terms more or less favorable to the grantee or other entity.

§ 81-5 Definitions and word usage.

A. For the purpose of this article, the following terms, phrases and words and their derivations shall apply:

ADDITIONAL SERVICE

A subscriber service provided by the grantee for which a special charge is made based on tier, program or service content or time of usage.

BASIC SERVICE

A subscriber service provided by the grantee that includes the delivery of broadcast signals and programming originated over the cable system and is covered by the regular monthly charge paid by all subscribers.

BROADBAND TELECOMMUNICATIONS NETWORK

Any network of cables and other electrical and electronic equipment, including cable television systems, used for the purpose of transmission of electrical or optical impulses of television, radio and other intelligences, either analog or digital, via cable for sale to or use by the inhabitants of the town.

CABLE

Coaxial cables, wave guides, fiber optic cables or other conductors and equipment for providing television service by cable or through its facilities as herein contemplated, and including closed circuit special event programs and educational television.

COMMENCE OPERATION

Operation shall be considered commenced when sufficient distribution facilities have been placed in use to offer full network service to at least 25% of the inhabitants of the town.

COMMISSION

The Town Commission and any legally appointed or elected successor or agency.

COMPLETED

Operation shall be considered completed when sufficient distribution facilities have been placed in use to offer full network service to 100% of the inhabitants in the franchise area.

DATA GRADE

Coded transmissions primarily digital in nature.

DB

The level in the network expressed in db's above or below a power corresponding to a root mean square voltage of one millivolt across 75 ohms.

FORTY-PERCENT SATURATION

The grantee's number of subscribers within the franchise area receiving at least basic service totals at least 40% of the number of homes passed by the grantee's cable which is located within the corporate limits of the town.

FRANCHISE FEE

Any charge imposed for a franchise, whether the object is regulation or revenue.

FULL NETWORK SERVICE

All basic and additional services offered by the grantee.

GRANTEE

Any person, firm, company, corporation, association or governmental entity to whom or to which a franchise is granted by the Town Commissioners hereunder and the lawful successor or assignee of the same.

GROSS REVENUES

Any revenue derived directly or indirectly by a grantee, its affiliates, subsidiaries, parents and any persons or entities in whom or in which a grantee has a financial interest of 5% or more from or in connection with the operations of a Ridgely cable system, including but not limited to basic or extended basic subscriber service monthly fees, pay cable fees, installation and reconnection fees, leased channel fees, converter rentals, enhanced telecommunication services, studio rental, production equipment rental and advertising revenues. The term does not include any taxes on services furnished by a grantee and imposed directly upon any subscriber or used by the town, state or other governmental unit and collected by a grantee on behalf of said governmental unit. The term does include any revenues raised to offset the cost of any local franchise fee.[1]

HEAD END

The land, electronic processing equipment, antennas, tower, building and other appurtenances normally associated with and located at the starting point of a broadband telecommunications network.

INITIAL SERVICE AREA

That geographical area within the incorporated limits of the town.

OFFICE

The use of the title of any officer, employee or office shall mean such officer, employee or office of the town unless otherwise specifically designated.

PHYSICAL MILE OF PLANT

Messenger strand as measured from pole to pole without taking into consideration sag or down guys, and, for buried plant, actual trench feet.

SALE

Any sale, exchange, barter or offer for sale.

STATE

The State of Maryland.

STREET

All streets, highways, avenues, lanes, alleys, courts, places, squares, curbs, sidewalks or other public ways, to include rights-of-way and easements other than specific purpose easements or agreements, in the town which have been or may hereafter be dedicated and open to public use or such other public property so designated in any law of the state.

SUBSCRIBER

Any person, firm, company, corporation or association receiving reception service from the grantee.

TOWN

The Town of Ridgely, Maryland, including the area within the territorial limits of the town.

VIDEO GRADE

Transmission primarily analog in nature, including the picture phase of a television broadcast.

VOTE

Whenever the word refers to the members of the Commission, the vote required shall be in relation to the total membership rather than to those present at the meeting.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

B. "May" is permissive; "shall" is mandatory.

§ 81-6 Grant of nonexclusive authority.

A. Rights and privileges granted. Any franchise granted hereunder shall give to the grantee the right and privilege to construct, erect, operate, modify and maintain, in, upon, along, across, above, over and under streets (as defined in § 81-2) which have been or may hereunder be dedicated and open to public use in the town, towers, antennas, poles, cables, electronic equipment and other network appurtenances necessary for the operation of a broadband telecommunications network in the town, provided that such right and privilege shall not include the right to contact or otherwise use any poles, conduits or property of Delmarva Power and Light without first obtaining a pole or conduit use agreement as provided in § 81-4H.

B. Tree trimming. Any franchise granted hereunder shall give the grantee the authority to trim trees upon and overhanging the streets so as to prevent damage to the telecommunications network and interruption of service. Such tree trimming as may be required shall be done under the supervision and direction of the town at the sole expense of the grantee.

C. Length of franchise.

(1) The franchise and rights therein granted by the town shall take effect in accordance with the provisions of § 81-8 and continue in full force and effect for a term of 10 years. The franchise may be renewed or extended by the town upon application of the grantee in accordance with the then existing rules of the Federal Communications Commission and applicable law. Renewal or extension of the franchise shall be considered at a full public proceeding affording due process, during which the performance of the grantee and the adequacy of the franchise ordinance shall be reviewed. Nothing in this provision shall be construed to require such renewal or extension. If the grantee elects not to renew the franchise, written notification of such intent shall be submitted to the town at least 12 months prior to the expiration of the franchise or as provided for by applicable state and federal law.

(2) In the event that federal legislation is passed that negates the requirement for cable television operators to obtain, secure or otherwise enter into franchise agreements such as this with municipalities, this franchise shall be null and void and of no effect in accordance with said legislation.

D. Penalty assessments. Notwithstanding any other provision contained herein, the Town Commissioners, by majority vote, reserve the right to levy a penalty assessment upon the grantee in an amount not to exceed $1,000 for each violation which would constitute a material breach of the franchise agreement, provided that the grantee shall be given at least 30 days' prior notice of the breach or breaches alleged to have been committed and the time and date of the Town Commission meeting at which the penalty assessment shall be considered, and further provided that the grantee shall be given an opportunity to speak in its defense before the Commission prior to a vote thereon.

E. Terminating franchises. To the extent allowable under state and federal regulations, the town reserves the right to terminate any franchise granted hereunder and rescind all rights and privileges associated therewith for:

(1) Failure to pay penalty assessments levied for material breaches of the franchise agreement, unless the grantee is legally contesting the levy in court.

(2) Noncompliance by the grantee with any provision of this article or of any supplemental written agreement entered into by and between the town and the grantee.

(3) The grantee becomes insolvent, enters into receivership or liquidation, files an application for bankruptcy or for composition of creditors, is unable or unwilling to pay its debts as they mature or is in financial difficulty of sufficient consequence so as to jeopardize the continued operation of the network.

(4) Violation by the grantee of any Federal Communications Commission order or ruling or the order or ruling of any other governmental body having jurisdiction over the grantee, unless the grantee is lawfully contesting the legality or applicability of such order.

F. Notice of termination. If the town decides to terminate for cause a franchise granted hereunder, it shall give the grantee 90 days' written notice of its intention to terminate and stipulate the cause. If during the ninety-day period the cause shall be cured to the satisfaction of the town, the town may, at its discretion, declare the notice to be null and void. Before a franchise may be terminated, the grantee shall be provided with an opportunity to be heard before the Town Commission. The grantee shall have all remedies at law or in equity should the town terminate the franchise.

G. Removal of grantee's property. If the grantee's franchise is terminated or expires, the grantee shall, within 90 days of the date of termination or expiration, remove all property owned by it and placed on a public right-of-way, unless permitted by the town to abandon the property in place or to transfer it to a purchaser previously approved by the town. In the event of any such removal, the grantee shall restore the public right-of-way to a condition satisfactory to the town. Upon abandonment, which shall only be done as the town directs, the grantee shall transfer ownership of all such abandoned property to the town and submit to the town an instrument, in writing, subject to the approval of the Town Attorney, effecting such transfer.

§ 81-7 Limitations of franchise.

A. Preferential or discriminatory practices. Except when necessary for conducting limited-term marketing specials, the grantee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any undue preference or advantage to any subscriber or nonsubscriber nor subject any person to prejudice or disadvantage. The grantee shall not refuse to hire or employ, nor bar or discharge from employment, nor discriminate against any person in compensation or in terms, conditions or privileges of employment because of age, race, creed, color, national origin or sex.

B. Sale or transfer of franchise. Ownership or control of the grantee or of the franchise cannot be sold, transferred, leased, assigned or disposed of, in whole or part, either by forced or voluntary sale, merger, consolidation, mortgage, trust or any other means, without the prior approval of the town expressed by a Commission resolution. The Commission may, if it so desires, pass a resolution allowing stock transfers which would not result in any person gaining ownership or control of more than 10% of the right of control of the grantee to be executed without specific Commission approval. In the event that the grantee elects to sell the system, the town shall have the right to purchase the same under the conditions set forth in Subsection C.

C. Right of town to purchase. To the extent permitted by law at the time of the exercise of the town's right to purchase, in the event that the grantee elects to sell the system or otherwise forfeits, or upon revocation or other termination of a franchise pursuant to the terms of this article, or at the normal expiration of the franchise term, the town shall have the option, directly or as an intermediary, to purchase the cable television system. The option period shall commence with the notice of the intent to transfer or the forfeiture, revocation, termination or expiration of the franchise term and expire 90 days thereafter. The town shall exercise its option to purchase the system by resolution passed by the Town Commission within such option period.[1]

(1) To the extent permitted by law at the time of the exercise of the town's right to purchase, the value of the cable television system shall be fair market value of the system. Excluded in determining the fair market value shall be any value attributable to the franchise.

(2) The date of valuation shall be the effective date of the resolution passed by the Town Commission indicating its intent to exercise the option provided for hereunder.

(3) Upon exercising this option by the town and payment of the purchase price, either agreed upon between the parties or established under Subsection C(4), the grantee shall immediately transfer to the town possession and title to all real and personal property of the cable television system, free from any and all liens and encumbrances not agreed to be assumed by the town in lieu of some portions of the purchase price set forth above, and the grantee shall execute such warranty deeds or other instruments of conveyance to the town as shall be necessary for this purpose. In the event that there exists a period of time between the termination of the franchise and the payment by the town to the grantee for the purchase of the cable television system, the town may request the grantee to continue operating the system until such payment has been made, and, if so requested, the grantee shall do so in accordance with the applicable terms and conditions of this article.

(4) In the event that the town exercises its option hereunder and the parties cannot agree as to the value of the cable television system, either party may give notice of a demand to the other for arbitration. Arbitration shall commence and proceed according to law except as follows:

(a) Each of the parties shall, within 15 days of the demand for arbitration, appoint one arbitrator who is experienced and knowledgeable in the valuation of business property. The arbitrators shall then select a third arbitrator similarly qualified within 15 days after the initial two arbitrators have been selected. This group shall be designated as the Board of Arbitrators.

(b) Within 30 days after selection of the third arbitrator and upon 10 days' written notice to the parties, the Board of Arbitrators shall commence a hearing on the issue of valuation.

(c) The hearing shall be recorded and may be transcribed at the request of either party. All hearing proceedings, debate and deliberations shall be open to the public and at such times and places as contained in the notice or as thereafter publicly stated in any order to adjourn, unless both parties agree otherwise.

(d) At the close of the hearings and within 30 days, the Board of Arbitrators shall prepare findings and a decision agreed to by a majority of the Board which shall be filed with the town and served by mail upon the grantee. The decision of the Board shall be final and binding upon the parties.

(e) The cost of arbitration shall be borne equally between the parties.

(f) At any stage during the arbitration proceedings, the Board may request and the grantee shall make available information which may be relevant in determining the value of the cable television system.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

D. Liability. The grantee shall have no recourse against the town for any loss, cost, expense or damage arising out of any provisions or requirements of this article or its regulation.

E. Public protection. The grantee shall at all times during the life of any franchise granted hereunder be subject to all lawful exercise of the regulatory authority by the town and shall comply with any ordinances which the town has adopted or shall adopt applying to the public generally and to other grantees.

F. Responsibility of grantee. Time shall be of the essence of any franchise granted hereunder. The grantee shall not be relieved of its obligations to comply with any provision of this article by the failure of the town to enforce prompt compliance.

G. Other financial interests. The grantee or any of its affiliated, subsidiary or parent organizations or shareholders, officers or directors shall not, within the corporate limits of the town or within 10 miles in any direction, engage in the sale, renting, leasing or repairing of radio or television receivers or any appurtenances thereof.

H. Pole and conduit use. Any franchise granted hereunder shall not relieve the grantee of any obligation involved in obtaining pole or conduit use agreements from Delmarva Power and Light or other utility companies or others maintaining poles or conduits in the streets of the town whenever the grantee finds it necessary to make use of such poles or conduits.

I. Construction approval. The grantee shall submit to the Town Manager a written request for review and approval of each new phase of construction intended to be built within the franchise area in previously unserved areas or substantial rebuilds in currently served areas. Such requests shall be submitted along with a map of the area to be served which shall be clear and legibly drawn to a scale of no more than 500 feet per inch and shall contain the names of all streets, North point arrow, map scale, proposed time frame for construction and such symbols as are necessary to clearly show the location and type of all proposed construction, equipment and appurtenances.

J. Installations near streets. Any poles, cable, electronic equipment or other appurtenances of the grantee to be installed in, under, over, along, across or upon a street shall be located so as to cause minimum interference with the public use of the streets and to cause minimum interference with the rights of other users of the streets or of property owners who adjoin any of the streets. All such installations shall be subject to the prior approval of the town (excluding service drops to individual customers).

K. Street restoration. If the grantee disturbs any street it shall, at its own expense and in a manner approved by the town, replace and restore such street in as good a condition as before the work causing such disturbance was done.

L. Construction requirements. The grantee shall construct, maintain and operate its network so as to cause minimum inconvenience to the general public. The grantee shall install underground service in areas where electric and phone services are underground. Unless a greater depth is required, the minimum depth for underground cable service shall be 12 inches. All excavations shall be properly guarded and protected and shall be replaced and the surface restored promptly after completion of the work. The grantee shall at all times comply with all street opening and excavation ordinance requirements of the town.

M. Temporarily altering fixtures. The grantee shall, upon reasonable notice from any person holding a building moving permit issued by the town, temporarily alter its facilities to permit the moving of such building. The actual cost of such altering shall be borne by the person requesting the altering, and the grantee shall have the right to request payment in advance. For the provision of this article, "reasonable notice" shall be construed to mean at least 72 hours prior to the move.

§ 81-8 Additional town rights in franchise.

A. Modifying regulations. The town may, from time to time, add to, modify or delete provisions of this article as it deems necessary in the exercise of its regulatory powers, provided that such additions or revisions are reasonable and do not place an undue financial burden on the grantee. Such additions or revisions shall be made only after a public hearing for which the grantee shall have received written notice at least 30 days prior to such hearing.

B. Grantee's responsibility to town.

(1) The town may, upon reasonable notice, require the grantee, at its expense, to protect, support, temporarily disconnect, relocate or remove from the town's streets any property of the grantee by reason of traffic conditions, public safety, street construction or vacation, change or establishment of street grade, installation of sewers, drains, water pipes, power or communication lines, track or other types of structures or improvements by governmental agencies or any other structures or public improvement. Reasonable notice for this provision shall be construed to mean at least 30 days, except in the case of emergencies where no specific notice period shall be required.

(2) In the event that expenses associated with such relocation, removal or other requirements cited above qualify for reimbursement from federal or state agencies, the grantee's expenses shall be submitted for reimbursement in accordance with the grant or other vehicle associated with the requirement.

C. Failure to complete work. If the grantee fails to complete any work required by Subsection B above or any other work required by town law or ordinance within the time established and to the satisfaction of the town, the town may cause such work to be done, and the grantee shall reimburse the town the cost thereof within 30 days after receipt of an itemized list of such cost.

D. Emergency use of facilities. The town may, in the event of an emergency or disaster, require the grantee to make available its facilities to the town, at no cost, for emergency use during such emergency or disaster period.

E. Town's right to grantee's records. The town shall, to the extent permitted by law, during the life of any franchise granted hereunder, have access at all reasonable hours to the grantee's plans, contracts and engineering, accounting, financial, statistical, customer and service records relating to the property and the operations of the grantee in the franchise area and to all other records required to be kept hereunder.

F. Supervision of construction and installations. The town may, during the life of any franchise granted hereunder, inspect and supervise all construction or installation work performed subject to the provision of this article to ensure compliance with the terms of this article.

G. Town's right of eminent domain. Nothing in this article shall in any way or to any extent be construed to waive, modify or abridge the town's right of eminent domain in respect to the grantee.

H. Transfer of duties, rights and power. Any right or power in or duty impressed upon any officer, employee, department or board of the town shall be subject to transfer by the Commission or by law to any other officer, employee, department or board of the town. The town reserves all rights not specifically granted herein.

§ 81-9 Initial service area.

The grantee of any franchise hereunder shall provide service to all areas within the town limits.

§ 81-10 Extensions.

A. Subsequent service extension. Whenever a single residential unit is within 300 feet of existing cable plant, the grantee must provide cable installation within its usual time frame upon subscriber request. When an unserved area in the franchise territory has a density of at least 20 homes per plant mile or incremental portion thereof, measured from the nearest access point to the existing system to the end of the potential extension, the grantee shall extend cable service to that area within 180 days of a request from any resident of the unserved area. The grantee may charge no more than its normal installation rates for service extensions required under this section.

B. On the request of any potential subscriber desiring service in unserved areas, the grantee shall prepare a feasibility study to determine the cost of plant extension required to provide service to that subscriber from the closest point where available quality signals exist. The grantee shall be entitled to charge a nonrefundable engineering fee of $25 for each such subscriber to cover the costs of preparing the same.

C. A portion of the cost of construction and installation shall be paid by subscribers served by the line extension as determined by the following formula:

$TKSLLDIR/images/RI1702/1702-081.tif

	Where:
	C	=	Cost to construct the extension (based on 1994 cost of $15,000 for aerial and $18,000 for underground construction per mile, escalated by the annual change in the Consumer Price Index after 1994)
	N	=	Number of subscribers agreeing to take service
	L	=	Length of the extension in miles
	A	=	Per subscriber advance in aid

D. During the three-year period following the commencement of service within such extension area, if additional persons with such extension area choose to subscribe to the grantee's service, such persons shall be assessed a pro rata portion of the original total amount of the shared construction costs assessed against the original customers of the extension area, and appropriate pro rata refunds of such additional contributions shall be made to the original subscribers within 90 days of the annual anniversaries of commencement of service within such extension area.

§ 81-11 Time frames.

A. Filing application. Within 30 days of the effective date of a franchise grant hereunder, the grantee shall file with the appropriate authorities and utilities all papers and applications necessary to comply with the terms of this article and shall thereafter diligently pursue all such applications.

B. Initiation of construction. Within 12 months of the effective date of a franchise granted hereunder, the grantee shall initiate construction and installation of the broadband telecommunications network. Such construction and installation shall be pursued with reasonable diligence.

C. Commencing operation. Within 12 months of the effective date of a franchise granted hereunder, the grantee shall commence operation.

D. Completion of construction. Within 24 months of the effective date of a franchise granted hereunder, the grantee shall have completed construction of the initial service area.

E. Failure to comply. Failure to do any of the foregoing provisions of this section within the time specified shall be grounds for the termination of the franchise.

F. Time extensions. The town may, in its discretion, extend the time for the grantee, acting in good faith, to perform any act required hereunder. The time for performance shall be extended or excused, as the case may be, for any period during which the grantee demonstrates to the satisfaction of the Town Commission that the grantee is being subjected to delay or interruption due to any of the following circumstances if reasonably beyond its control:

(1) Necessary utility rearrangements or pole change out.

(2) Governmental or regulatory restrictions.

(3) Labor strikes.

(4) Lockouts.

(5) War.

(6) National emergencies.

(7) Fire.

(8) Other acts of God.

§ 81-12 Liability and indemnification.

A. Town to be held harmless. It shall be expressly understood and agreed by and between the town and any grantee hereunder that the grantee shall save the town harmless from all loss sustained by the town on account of any suit, judgment, execution, claim or demand whatsoever arising out of but not limited to copyright infringements and all other damages arising out of the installation, operation or maintenance of the broadband telecommunications network authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this article and any franchise granted hereunder.

B. Financial responsibility. The grantee shall pay and by its acceptance of any franchise granted hereunder agrees that it shall pay all expenses incurred by the town in defending itself with regard to all damages and penalties mentioned above. These expenses shall include reasonable out-of-pocket expenses, such as consultants or attorneys.

C. Insurance. The grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it shall maintain throughout the term of the franchise a general comprehensive liability insurance policy, naming as a co-insured the town, its officers, boards, commissions, agents and employees, in a company approved by the Town Attorney and in a form satisfactory to the Town Attorney, protecting the town and all persons against liability for loss or damage for personal injury, death or property damage occasioned by the operation of the grantee under any franchise granted hereunder in the amount of:

(1) One million dollars for bodily injury or death to any person, within the limit of $2,000,000 for bodily injury or death resulting from any one accident; and

(2) One million dollars for property damage resulting from any one accident.

D. Approval by the Town Attorney shall be deemed confirmed if the grantee is not notified to the contrary within 30 days of receipt by the town of such insurance certificate.

E. Endorsement. The insurance policies mentioned in Subsection C above shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the amount of coverage thereof reduced until 30 days after receipt by the Town Clerk/Treasurer by registered mail of a written notice of such intent to cancel or to reduce the coverage.

F. Bond. The grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it shall maintain throughout the term of the franchise a faithful performance bond running to the town, with at least two good and sufficient sureties approved by the Town Manager, in the penal sum of $250,000 conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of this article and any franchise granted hereunder and that in case of any breach of condition of the bond the amount thereof shall be forfeited to the town as liquidated damages. The bond shall contain the following endorsement:

It is hereby understood and agreed that this bond may not be canceled nor the intention not to renew be stated until 30 days after receipt by the Town Clerk/Treasurer by registered mail of a written notice of such intent to cancel or not renew.

G. All bonds, policies of insurance or certified copies thereof and written evidence of payments or required premiums shall be filed and maintained with the Town Clerk/Treasurer during the term of any franchise granted hereunder.

H. Neither the provisions of this article nor any bond accepted by the town pursuant hereto nor any damages recovered by the town hereunder shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise.

§ 81-13 Rules promulgated by grantee.

A. Authority. The grantee of any franchise awarded hereunder shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under this article and any franchise granted hereunder.

B. Conflicts. All such rules, regulations, terms and conditions promulgated under Subsection A shall not be in conflict with the provisions hereof or the laws of the state, the rules and regulations of the Federal Communications Commission or any other agencies having jurisdiction or any rules and regulations promulgated by the town in the exercise of its regulatory authority granted hereunder.

C. Copy to be kept on file. One copy of all such rules, regulations, terms and conditions promulgated under Subsection A, together with any amendments, additions or deletions thereto, shall be kept currently on file with the Town Clerk/Treasurer, and another copy thereof shall be maintained for public inspection during normal business hours at the grantee's office in the town. No such rules, regulations, terms, conditions or amendments, additions or deletions thereto shall take effect unless and until so filed and maintained.

§ 81-14 Rates and charges.

A. Rates charged by a grantee for service hereunder shall be fair and reasonable. Before any service is sold to any customer, the grantee shall file with the Town Clerk/Treasurer its schedule of rates for installation, monthly service charges and any other charges related to the operation of the cable system, together with a statement of the rights and obligations of the subscribers.

B. Subsequent additions or amendments to rates and service charges shall likewise be filed with the Town Clerk/Treasurer or other appointed representative at least 30 days before the same become effective.

C. The town reserves the option to regulate rates for cable service, should such power be allowed under federal and state law.

§ 81-15 Service interruptions; subscriber agreements.

A. Save town harmless. The grantee herein shall save harmless the town, its officers and agents and employees from any and all claims for interruption of service unless such interruption is caused by the negligence of the town, its officers, agents or employees.

B. Service interruptions. The grantee agrees that if service is interrupted due to the inability to use a street, the grantee shall make reasonable effort to provide service over alternate routes.

C. Agreements with subscribers. The form of the grantee's agreements with its subscribers and users shall be subject to the approval of the Town Commission, and copies of all types of agreements used by the grantee shall be filed and maintained with the Town Clerk/Treasurer.

§ 81-16 Service standards.

A. Compliance with this article. The grantee shall maintain and operate its broadband telecommunications network in accordance with the rules and regulations as are incorporated herein or may be promulgated by the town or may be required by the state or federal government.

B. Video grade capability. The grantee shall provide a network having a minimum initial capacity of 41 channels.

C. Subscriber privacy.

(1) No monitoring of any authorized terminal connected to the system, except for technical performance or proper delivery of authorized service, shall take place without specific written authorization by the user of the terminal in question on each occasion and written notice to the town.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

(2) A grantee shall not, except as required by governmental regulation or action, provide any data concerning specific subscribers or users or their use of subscriber services without first securing written authorization from the subscribers or users as required by law.

(3) Subscribers and users shall retain the right to deactivate their terminals but shall continue to be responsible for charges until the grantee is notified to terminate service and all of the grantee's property or equipment is returned in good working order, normal wear and tear excepted.

D. Television signals. The grantee shall carry, to the extent permitted by the Federal Communications Commission or other regulatory agency which may have jurisdiction, and shall exercise its best efforts to obtain permission from such regulatory agencies to carry, television signals and program services as part of the broadcast basic service such as those listed in Exhibit A.[2]

[2] Editor's Note: Exhibit A is included at the end of this chapter.

E. Time and weather programming. The grantee shall provide at least one channel carrying time and weather programming.

F. Notice of interruptions. The grantee, whenever it is necessary to interrupt service over the broadband telecommunications network for the purpose of network maintenance, alteration or repair, shall do so at such time as shall cause the least amount of inconvenience to its subscribers, and, unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to the affected subscribers.

G. Office facilities. The grantee shall maintain a toll-free listed telephone number and be so operated that complaints, compliments and requests for repairs or adjustments may be received at any time. During standard business working hours, which are to be 9:00 a.m. to 5:00 p.m. Monday through Friday and Saturday 9:00 a.m. to 12:00 noon, the grantee's office must be open and able to accept payments, exchange or accept return of convertors, schedule and conduct service or technician calls and answer subscriber inquiries.

H. Same day service. The grantee shall provide same day service response for all complaints and requests for repairs or adjustments received prior to 1:00 p.m. each business day. In no event shall the response time for calls received subsequent to 1:00 p.m. exceed 24 hours.

I. Service deficiency rebates. Upon failing to correct a service deficiency within 24 hours, the grantee shall rebate 1/30 of the monthly charge for the affected basic service and additional service to each subscriber for 24 hours or fraction thereof after the first 24 hours following report of loss of service to the grantee, except to the extent that restoration of service is prevented by strike, injunction, Act of God or other cause beyond the control of the grantee. The grantee shall maintain a log, which shall be filed annually upon request with the town as set forth in § 81-20 herein, of such reports and of the time of restoration of service.

J. Disabling reception. As an additional service, the grantee shall make available, when requested by the subscriber, a subscriber-lockable means of disabling reception of basic and other additional services to which the subscriber may have access.

K. Emergency alert system. The grantee shall provide an all-channel audio and video override capability controlled by designated town officials for emergency broadcasts.

L. Program or service changes. The grantee is required to give 30 days' notice to the town and the subscribers of discontinuance of current billed services or future billed additions.

§ 81-17 Technical standards.

The cable system shall be operated to comply with or exceed all guidelines and standards set by the FCC for signal quality and leakage. The town reserves the right to test the system and independently measure the signal quality. The system shall comply at all times with the National Electrical Code of the National Fire Protection Association.

§ 81-18 Construction standards.

A. All new construction practices shall be in accordance with current standard utility practices as detailed in the current Edison Electrical Institute Publication governing joint-use agreement and all federal, state and local codes where applicable.

B. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable portions of the current edition of the National Electric Code.

C. Antenna-supporting structures (towers) located in the town shall be designed for Loading Zone B as outlined in the Electronics Industry Association's R.S. 222 Specifications.

D. Antenna-supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aeronautical Agency and the State Aeronautics Board governing the erection and operation of supporting structures or television towers and all other applicable local, state or federal codes and regulations.

E. Nothing in this article or any franchise granted hereunder shall authorize the grantee to construct, erect or operate and maintain in the town new poles and underground conduits where existing poles and conduits are servicing the area. The grantee does have the right, however, to construct, erect, operate and maintain poles and underground conduits where none exist at the time the grantee seeks to install its network. The grantee shall obtain permission from the town before constructing or erecting any new poles or underground conduits.

F. Nothing in this article or any franchise granted hereunder shall relieve the grantee of the obligation of placing network facilities underground in areas presently served or to be served in the future by underground electric facilities. The grantee shall abide by the requirements of the town in regard to the installation or relocation of such service facilities.

G. All construction and installation of all of the grantee's network facilities shall be subject to the prior approval of the town and to inspection and supervision of such construction and installation as set forth in § 81-5F.

§ 81-19 Subscribers' antennas.

A. The grantee shall not at any time require the removal of or offer to remove any existing or potential subscriber's antenna.

B. As an additional service, the grantee shall install, when requested by the subscriber, a switching device so as to permit a subscriber to continue to utilize his or her own television antenna as he or she chooses.

§ 81-20 Subscriber refunds.

If any subscriber of the grantee of less than six months terminates service because of the grantee's failure to render service to the subscriber of a type and quality provided for herein or if service to a subscriber of less than six months is terminated without good cause or if the grantee ceases to operate the broadband telecommunications network authorized herein for any reason except termination or expiration of a franchise granted hereunder, the grantee shall refund to such subscriber of less than six months an amount equal to the installation and connection charge paid by him or her in accordance with the schedule of charges contained in the grantee's application for a franchise hereunder, which schedule is incorporated herein by reference. In no event shall the grantee be required to refund the monthly charge for services already provided, except as it may express a willingness to do so.

§ 81-21 Complaint procedure; consumer service standards.

A. Nothing in this article shall be construed to prevent or prohibit:

(1) The grantor and the grantee from agreeing to exceed the customer service standards set forth herein.

(2) The grantor from enforcing, through the franchise term, preexisting customer service requirements that exceed the requirements set forth herein and are contained in current franchise agreements.

(3) The establishment or enforcement of any state or municipal law or regulation concerning customer service or consumer protection that imposes customer service or consumer protection requirements that exceed or address matters not addressed herein.

B. The grantee shall maintain at its local office the necessary facilities, equipment and personnel to comply with the following consumer standards under normal conditions of operation:

(1) Service standards. The grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Scheduled service interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A written log or an equivalent stored in computer memory and capable of access and reproduction shall be maintained for all service interruptions and requests for cable service as required by this article.

(2) Telephone lines. Local toll-free or collect call telephone line capacity shall be made available by the grantee to customers 24 hours per day, seven days a week, including holidays. The grantee shall use best efforts under normal operating conditions during normal business hours to ensure that a minimum average of 90% of all callers (measured on a quarterly basis) for service will not be required to wait more than 30 seconds before being connected to a trained customer service representative and shall receive a busy signal less than 3% of the time (measured on a quarterly basis). If the call needs to be transferred, the transfer time shall not exceed 30 seconds. Inquiries received after normal business hours may be answered by a service or an automated response system, and such calls must be responded to by a trained company representative on the next business day.

(3) Installation staff. An installation staff shall install service to any subscriber located up to 150 feet from the existing distribution system within seven days after receipt of a request. This standard shall be met no less than 95% of the time (measured on a quarterly basis).

(4) Installation, outages and service call scheduling. The grantee shall schedule, either at a specific time or, at maximum, within a specified four-hour time period, all appointments with subscribers for installation or service. The grantee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. These standards shall be met no less than 95% of the time (measured on a quarterly basis).

(5) Repair standards. The grantee shall maintain a repair force of technicians who, under normal operating conditions, are capable of responding to subscriber requests for service within the following time frames:

(a) System service interruption. Under normal operating conditions, within eight hours, including weekends, of receiving subscribers' calls which by number identify a system service interruption of sound or picture on one or more channels affecting all the subscribers of the system or 2% thereof.

(b) Isolated service interruption. Within 24 hours, including weekends, of receiving requests for service identifying an isolated service interruption (less than 2% of subscribers) of sound or picture for one or more channels. This standard shall be met no less than 95% of the time (measured on a quarterly basis).

(c) Inferior reception quality. Within 48 hours, including weekends, of receiving a request for service identifying a problem concerning picture or sound quality. The grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival.

(6) Notification of service interruption to Town Manager. The grantee shall promptly notify the Town Manager, in writing, or, if appropriate, by oral communication of any significant interruption in the operation of the system. For the purposes of this subsection, a "significant interruption" shall be the loss of sound or picture on one or more channels with a duration of at least one hour to at least 5% of the subscribers or an interruption of sound or picture on at least one or more channels initiated by the grantee of at least four hours to any single subscriber.

(7) Normal operating conditions shall mean those service conditions which are within the control of the grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the grantee 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 the cable system.

§ 81-22 Filing of communications with regulatory agencies.

The grantee shall simultaneously file and maintain with the Town Clerk/Treasurer, upon request, copies of all petitions, applications and communications transmitted by the grantee to, or received by the grantee from, all federal and state regulatory commissions or agencies having competent jurisdiction to regulate the operations of any broadband telecommunications network authorized hereunder.

§ 81-23 Reports.

A. The reporting entity shall be defined as follows with respect to the submission of reports required in Subsection C(1): the corporation, partnership subsidiary, component unit, affiliate or any other organization operating within the United States and subject to reporting for all federal and state regulatory commissions or agencies.

B. The reporting entity shall be defined as follows with respect to the submission of reports required in Subsection C(2) through (6): financial transactions exclusively limited to the corporation, partnership subsidiary, component unit or any other organization's operations within the corporate boundaries of the town.

C. The grantee shall file annually upon request with the Town Clerk/Treasurer not later than three months after the end of the fiscal year during which it accepted a franchise hereunder and within three months after the end of each subsequent fiscal year:

(1) A copy of its annual report to stockholders (if such a report is prepared) and an audited financial statement applicable to operations of the entity as defined in this section. These reports, along with other such reasonable information as the town may request, shall be reviewed and certified by a public accountant (CPA) in accordance with generally accepted auditing standards prior to submittal to the town.

(2) An income statement applicable to its operations under such franchise during the fiscal year or fraction thereof and a listing of its properties devoted to network operations, together with an itemization of this investment in each of such properties on the basis of original cost less depreciation. These reports, along with other such reasonable information as the town may request, shall be reviewed and certified by a public accountant (CPA) in accordance with generally accepted auditing standards prior to submittal to the town.

(3) A total facilities report setting forth the total physical miles of plant installed or in operation during the fiscal year.

(4) A list of all trouble complaints and network downtime received or experienced during the fiscal year. All such submitted data shall also include complaint response time and service restoral period. For the purposes of this provision, a certified copy of a complaint logbook reflecting all such incidents shall suffice.

(5) A statement certifying compliance with all applicable technical standards established by any regulatory agencies having jurisdiction.

(6) The following supplemental information:

(a) If a nonpublic corporation, a list of all current shareholders and bondholders both of record or beneficial. If a public corporation, a list of all shareholders who individually or as a concerted group hold 5% or more of the voting stock of the corporation.

(b) A current list of all the grantee's officers and directors, including addresses and telephone numbers.

(c) Copies of all pertinent agreements or contracts, including pole use agreements, entered into by the grantee during the fiscal year in the conduct of its business under a franchise granted hereunder.

(d) The names, addresses and both business and residential telephone numbers of the telecommunications network resident manager and engineer.

(e) One copy of all types of subscriber agreements as set forth in § 81-12C.

(f) Copies of all rules and regulations promulgated by the grantee during the fiscal year in the conduct of its business in accordance with the provisions of § 81-10.

(g) The number of subscribers receiving each tier of service.

(h) The grantee's gross revenue and operating expenses from the operation of each tier of service on the broadband telecommunications network in the town during the fiscal year.

§ 81-24 Applications for franchise.

Applications for a franchise hereunder shall be filed with the Town Clerk/Treasurer in accordance with the filing instructions promulgated by the town and shall contain the following information and provisions:

A. The name and business address of the applicant, date of application and signature of applicant or appropriate corporate officer.

B. Payment of the filing fee as set forth in this section.

C. A general description of the applicant's proposed operation, which shall include a written statement of compliance with the initial service area as set forth in § 81-6.

D. A statement of the television and radio services proposed, including off-the-air, locally originated and satellite signals.

E. A statement of the applicant's schedule of charges as set forth by the provisions of § 81-11.

F. A statement setting forth all agreements and understandings, whether written or oral, existing between the applicant and any other person with respect to any franchise awarded hereunder and the conduct of the operation thereof.

G. If the applicant is a corporation, a financial statement for the previous fiscal year, together with a board resolution authorizing the obtainment and expenditure of such funds as are required to construct, install and operate the broadband telecommunications network contemplated hereunder.

H. A brief technical description of the type of electronic equipment and transmission cable proposed for use by the applicant.

I. A statement from the applicant's senior technical staff member or consultant advising that he or she has reviewed the service standards and construction standards set forth in § 81-15 hereunder and that the applicant's planned network and operation thereof will satisfy all the requirements set forth herein.

J. A statement as to whether the applicant has applied for or been granted a franchise in any other city, together with the name, address and phone number of the City Attorney or City Manager/Administrator/Mayor in each such city in Caroline County.

K. A statement as to whether the applicant or any of its officers or directors or holders of 5% or more of its voting stock has in the past 10 years been convicted of any crime other than a routine traffic offense and the disposition of each such case.

L. Such supplementary, additional or other information that the town deems reasonably necessary for its determinations.

§ 81-25 Fees.

A. Franchise fee.

(1) Franchise fee payment. As compensation for permission to use the streets and public ways of the town for construction, operation, maintenance, modification and reconstruction of a cable system and for the town's costs in establishing a regulatory program for a grantee, the grantee shall pay to the town each year an amount not to exceed any maximum which may be set by law of the grantee's annual gross revenues.

(2) Payment schedule. The franchise fee shall be paid on a semiannual basis with payment to be made within 45 days of the end of each semiannual calendar period.

(3) Acceptance not considered release. No acceptance of any payment by the town shall be construed as a release or as an accord and satisfaction of any claim the town may have for further or additional sums payable as a franchise fee or for the performance of any other obligation of the grantee.

B. All fees set forth above shall not be construed as payments in lieu of municipal property taxes.

§ 81-26 Acceptance and effective date of franchise.

Any franchise awarded or renewed and the rights, privileges and authority granted thereby shall take effect and be in force from and after the 30th day following the award thereof, provided that within 30 days of such award the grantee shall file with the town the following:

A. A notarized statement by the grantee of unconditional acceptance of the franchise.

B. A certificate of insurance as set forth in § 81-9 herein.

C. A performance bond in the penal sum of $250,000 as set forth in § 81-9 herein.

§ 81-27 Regulatory jurisdiction.

In the absence of federal or state preemption, the town shall have continuing regulatory jurisdiction and supervision over the operation of any franchise granted hereunder and may from time to time adopt such reasonable rules and regulations as it may deem necessary for the conduct of the business contemplated thereunder.

§ 81-28 Unauthorized connections or modifications.

A. No person shall, without the expressed consent of the grantee, make any connection, extension or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a franchised broadband telecommunications network for any purpose whatsoever.

B. No person shall willfully interfere, tamper, remove, obstruct or damage any part, segment or content of a franchised broadband telecommunications network for any purpose. This section shall in no way impair or infringe upon rights presently enjoyed by utilities in the town, namely the Bell Atlantic Telephone Company and Delmarva Power and Light Company.

C. Any person who shall violate any provisions of this article or any order, rule or regulation made or adopted hereunder shall be subject to Chapter 1, General Provisions, Article II, General Penalty, of this Code. Each violation and each day the violation continues or occurs shall constitute a separate offense.

§ 81-29 Town's right of intervention.

The town shall have the right to intervene and the grantee specifically agrees by its acceptance of a franchise hereunder not to oppose such intervention by the town in any suit or proceeding to which the grantee is a party.

§ 81-30 Further agreements and waivers.

A. The grantee, by its acceptance of any franchise awarded hereunder, does agree that it shall not at any future time set up as against the town the claim that any provision of this article and any franchise granted hereunder is unreasonable, arbitrary, invalid or void.

B. The grantee, by its acceptance of any franchise awarded hereunder, does agree that such franchise is in lieu of any other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee in or pertaining to the installation and operation of a broadband telecommunications network or similar system in the incorporated limits of the town, and the acceptance of such franchise shall also constitute an abandonment by the grantee of any and all such rights, privileges, powers, immunities or authorities within the town, to the effect that, as between the grantee and the town, all construction, operation and maintenance by the grantee of any network in the town shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to such franchise and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.

§ 81-31 General provisions.

A. All applicants for a franchise hereunder, upon being designated a grantee, shall file with the Town Clerk/Treasurer within 30 days of such designation written notice of both the location and addressee for mail and official notifications.

B. All reports, filings, notifications and official mail from any grantee hereunder to the town shall be forwarded to the attention of the Town Clerk/Treasurer, P.O. Box 710, Ridgely, Maryland 21660.

C. Anything contained herein to the contrary notwithstanding, the grantee of any franchise awarded hereunder shall not be required to take any action hereunder which shall be in violation of any statutes, ordinances, rules or regulations promulgated by either a federal or state regulatory body having competent jurisdiction, and the grantee shall not be considered as having violated a provision of this article; provided, however, that it notifies the town of such conflict.

D. The scope of any franchise granted hereunder shall be deemed amendable from time to time to allow the grantee to innovate and implement new services and developments, provided that no such services or developments shall be put into service except in accordance with applicable federal regulations.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

E. The grantee of any franchise awarded hereunder shall at all times in the conduct of its business employ ordinary care and install and maintain in use commonly accepted methods and devices for preventing failure and accidents which are likely to cause damage, injuries or nuisances to the public in general.

F. The grantee of any franchise awarded hereunder shall provide, free of charge, one connection and full basic monthly service for such public and nonprofit private schools, elementary and secondary, town buildings and agencies as the town may hereafter designate, provided that such designated locations are within 500 feet of any existing network cable. The grantee may charge for any excess footage on the basis of time and materials for any such locations beyond the five-hundred-foot location if such connection is designated by the town. The town reserves the right, at its expense, to extend service to as many areas within such schools, buildings and agencies as it deems desirable without payment of any fee to the grantee.

G. Anything contained herein to the contrary notwithstanding, the award of any franchise hereunder shall not impart to the grantee any right of property in or on town-owned property.

H. Anything contained herein to the contrary notwithstanding, all provisions of this article and any franchise granted hereunder shall be binding upon the grantee, its successors, lessees or assignees.

I. All programs of broadcasting stations carried by the grantee shall be carried in their entirety as received by the grantee, with announcements and advertisements unaltered or substituted for and without additions, except as permitted or required by the Federal Communications Commission and/or other agencies having jurisdiction of the provisions of § 81-5D.

J. If during the term of any franchise granted hereunder the grantee receives refunds, or if the cost to the grantee is reduced by order of any regulatory body having competent jurisdiction, the grantee shall pass on to its subscribers, in accordance with applicable federal rate regulations, on a prorated basis, any such savings or reduced costs either in a lump sum payment or in the form of reduced monthly charges spread over a period not to exceed three months.

K. By its acceptance of the franchise, the grantee specifically grants and agrees that its application is hereby incorporated by reference and made a part of this article. If there is a conflict between proposed services listed in such application and the provisions of this article, that provision which provides the greatest benefit to the town, in the opinion of the Town Commission, shall prevail. Failure to provide services as promised in the grantee's application as incorporated herein shall be deemed a breach of this article to which the provisions of § 81-3 shall apply.

L. If the grantee violates any provision of this article, it shall be subject to a penalty as provided in § 81-3. This remedy shall be in addition to any other remedy.