Chapter 17.04 CABLE COMMUNICATIONS

Chapter 8A of the Montgomery County Code (1972), as amended, entitled “Cable Communications,” is incorporated by reference and enacted as the Cable Communications Ordinance of the City with the following additions and amendments:

A. Sections Added. Chapter 8A of the Montgomery County Code (1972), adopted by this chapter, is amended by adding the following additional sections:

1. Section 8A-3(u). “City” or “City of Takoma Park” means the Mayor and Council of Takoma Park, Maryland, an incorporated municipality. Notwithstanding anything to the contrary contained herein, the corporate limits of the City shall be included within the geographical areas of the County to which this law applies.

2. Section 8A-10(j), Approval by City. Whenever in this section the approval of the County is required, a franchisee shall also be required to obtain the approval of the City, which approval shall not unreasonably be withheld.

B. Sections Amended. The following sections of Chapter 8A of the Montgomery County Code (1972), adopted by this chapter, are amended to read as follows:

1. Section 8A-6(h), Indemnity.

A franchisee shall, at its sole cost and expense, indemnify, hold harmless and defend the County (including the City), its officials, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damage arising out of construction, maintenance, operation or removal of the cable communication system under the franchise. These damages shall include but not be limited to penalties arising out of copyright infringements and damages arising out of any failure by the franchisee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the cable communications system, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchise. (Prior code § 5A-1)

17.04.020 Amendments.

All amendments to Chapter 8A of the Montgomery County Code which are hereafter enacted shall become effective within the City upon the effective date thereof unless prior thereto an ordinance shall have been adopted by the City disapproving such amendments. (Prior code § 5A-2)

17.04.030 Existing executive regulations.

All executive regulations now adopted by the County Executive for Montgomery County pursuant to the authority contained in Chapter 8A of the Montgomery County Code (1972) are incorporated by reference and deemed to be effective within the City. (Prior code § 5A-3)

17.04.040 Future regulations or amendments to regulations.

All regulations or amendments to regulations hereafter adopted by the County Executive for Montgomery County pursuant to the authority contained in Chapter 8A of the Montgomery County Code (1972) shall become effective within the City upon the effective date thereof unless prior thereto an ordinance shall have been adopted by the City disapproving such regulations or amendments. (Prior code § 5A-4)

17.04.050 Enforcement.

Montgomery County, Maryland, is requested and authorized to administer and enforce the Cable Communications Ordinance of the City, and any franchise granted by the County Council for Montgomery County, Maryland, will be effective within the corporate limits of the City as fully and to the same extent as if granted by the City. (Prior code § 5A-5)

17.04.060 Compliance with other applicable ordinances.

Nothing herein contained shall in any way be construed as exempting the franchisee from compliance with any other applicable ordinance of the City now or hereafter enacted. (Prior code § 5A-6)

Article 2. Tenants’ Right of Access

17.04.070 Definitions.

For the purpose of this article, the following words and phrases shall have the following meanings:

“Bulk billing system” (sometimes referred to as a “bulk-rate master billing system) means a billing system, where offered by the cable operator, whereby the landlord agrees to be responsible for the payment to the cable operator of the total charges for cable service for all rental units in the landlord’s building.

“Cable communications system or systems” (sometimes referred to as “cable television system,” “cable TV” or “broadband communications network”) means all of the component physical, operational and programming elements of a system of antennae, coaxial cables, amplifiers, towers, microwave links, lines, wires, fiber optic cables, waveguides, laser beams, satellites or any other conductors, converters, equipment or facilities, designed, constructed and operated with the purpose of producing, transmitting, receiving, amplifying, storing, processing or distributing audio, video, digital or other forms of electronic or electrical signals, programs and services in which the signals are distributed by wire or cable to subscribing members of the public, including the structures, buildings and facilities in which or on which such components are located or which otherwise support the system. The term “cable communications system” shall include studios and the administrative offices for the entity operating the “cable communications system.” Such definition shall not include any similar facility the cables of which do not touch public rights-of-way and that serves only the occupants of a single parcel of land under common ownership or management. The foregoing definition shall in any event be the same as the one contained in Chapter 8A, Section 8A-3(b) of the Cable Communications Law, Montgomery County Code, or any subsequent amendments thereof, as adopted by Ordinance No. 2650 or any subsequent amendments thereof.

“Cable operator or franchisee” means the entity operating a cable communication system under a franchise. The foregoing definition shall in any event be the same as the one contained in Chapter 8A, Section 8A-3(j) of the Cable Communications Law, Montgomery County Code, or any subsequent amendments thereof, as adopted by Ordinance No. 2650 or any subsequent amendments thereof.

“Landlord” means the owner, the owner’s agent, lessor or sublessor of the rental unit or the property of which it is a part and, in addition, means any person authorized to exercise any aspect of the management of the premises except those persons engaged solely in custodial and maintenance functions. The foregoing definition shall in any event be the same as the one contained in Ordinance No. 2587 or any subsequent amendments thereof.

“Rental unit” means any building, structure or facility or portion thereof which is designated, intended or arranged for rental use or occupancy as a residence by one or more persons.

“Tenant” means any person who occupies a dwelling unit for living or dwelling purposes with the landlord’s consent. The foregoing definition shall in any event be the same as the one contained in Ordinance No. 2587 or any subsequent amendments thereof. (Prior code § 5A-7)

17.04.080 Applicability.

This article applies to all rental units located within the corporate limits of the City. (Prior code § 5A-8)

17.04.090 Landlord rights and duties.

A. Tenants shall have a right of access to any cable communications systems available to other residents of the City. Such right of access by tenants shall not be denied, withheld or restricted by any landlord. No landlord shall impose any condition or restriction upon the installation, inspection or maintenance of a cable operator’s system or equipment, provided that the cable operator complies with the requirements of this article and any other applicable requirements of State, Federal or County law.

B. A landlord may withhold or restrict tenant access to cable communications systems only where installation of the cable operator’s equipment would impair or interfere with the safety or structural or physical integrity of the landlord’s building.

C. A property owner shall have the right, upon request, to review and approve the design for the installation of the cable operator’s equipment prior to installation to ensure that the installation conforms to any conditions which are reasonable or necessary to protect the safety, structural or physical integrity or appearance of the premises. Such approval shall not be unreasonably withheld.

D. No landlord shall evict, coerce, discriminate or retaliate, in rental or other charges, in the provision of services or in any other manner, in any way against any tenant who chooses not to receive cable communications services. (Prior code § 5A-9)

17.04.100 Rights and duties of cable operators.

A. No equipment owned by the cable operator shall be installed by the cable operator for or with respect to any rental unit without first securing the written permission of the owner of the property in question. Such permission shall not be withheld, provided that the cable operator complies with the other requirements of this section.

B. Upon request by the property owner or landlord, the cable operator shall agree to indemnify and hold harmless the property owner or landlord for any damages arising out of the installation, operation, maintenance or removal of its equipment.

C. The cable operator shall install its equipment upon the landlord’s property at no cost or charge to the landlord.

D. The cable operator shall compensate the property owner for the occupation of its equipment upon the property in question. In the event that the cable operator and the property owner are unable to agree upon what constitutes reasonable compensation, this determination shall be made by the Cable Compensation Commission established under Section 17.04.110 of this article, upon application by the cable operator or the property owner. (Prior code § 5A-10)

17.04.110 Establishment of Cable Compensation Commission.

A. The Mayor and Council shall appoint a Cable Compensation Commission, whose function shall be to hold hearings and make determinations of reasonable compensation to a property owner for the occupation of a cable operator’s equipment upon the owner’s property, as more fully set forth in this article. The Cable Compensation Commission shall be composed of 3 members, one of whom shall be a professional real estate appraiser or agent with expertise in valuation of multifamily rental property, one of whom shall be a person with architectural expertise, and one of whom shall be a citizen with knowledge of cable communications systems; provided, however, that no member of the Commission shall have any financial interest in any franchisee or any multifamily rental property in the City.

B. Persons under consideration for appointment to the Commission shall disclose any financial or managerial interest they may have in any property in Takoma Park or any cable communications system or cable operator and shall provide such additional information as the Mayor and Council may request.

C. Commissioners shall serve for 2 years or until their successors are appointed and qualified. The terms of those Commissioners appointed initially shall commence upon their appointment by the Mayor and Council. Thereafter, terms shall commence on the first day of January of even-numbered years. (Prior code § 5A-11)

17.04.120 Assessment of compensation.

In a case where the property owner and the cable operator are unable to agree upon the amount of reasonable compensation payable by the cable operator for the entry or occupation of its equipment upon the property owner’s premises, the Cable Compensation Commission shall assess the compensation as follows:

A. The Commission shall assess a one-time charge of $1.00 for each rental unit on the owner’s premises for the permanent physical occupation of the premises by the cable operator’s equipment.

B. The Commission may assess compensation for professional review of a cable operator’s plan or design for the installation of cable communications equipment on the owner’s premises if there are more than 10 rental units on those premises, in an amount not to exceed $200.00.

C. Upon a showing that the fair market value of the owner’s property has increased or decreased as a direct result of the occupation of the property by the cable operator’s equipment, the Commission may adjust the compensation assessed under subsections (A) or (B) of this section downward or upward accordingly. In determining what constitutes reasonable compensation in a particular case, the Cable Compensation Commission shall take into account at least the following factors:

1. The location, nature, size and amount of space which the cable operator’s equipment would occupy under the cable operator’s design or plan of installation;

2. The nature and extent of any change in the appearance of the building which would result from the installation of the cable operator’s equipment in accordance with its design or plan of installation;

3. Any projected increase in the value of the property or its attractiveness to current or prospective tenants as a result of installation of the cable operator’s equipment and the consequent availability of a cable communications system;

4. Any alternative use which the property owner would have for the space which would be occupied by the cable operator’s equipment and any projected change in the value of the property or the owner’s rate of return thereon which would result from such alternative use;

5. The cost of any changes or modifications made by the cable operator at the property owner’s request, pursuant to Section 17.04.090(C).

D. If at any time after installation of a cable communications system a property owner constructs or places additional dwelling units on the owner’s premises, and the cable operator and the owner cannot agree on the amount of reasonable compensation payable for the physical occupation of those additional premises by the cable operator’s equipment, the Commission shall assess a one-time charge of $1.00 for each additional rental unit.

E. The Commission shall have the authority to establish such additional rules, regulations and guidelines for the assessment of compensation as it may deem appropriate, after notice and a hearing. (Prior code § 5A-12)

17.04.130 Fact-finding hearing.

At the request of any affected cable operator or property owner, the Cable Compensation Commission shall conduct a fact-finding hearing to determine what constitutes reasonable compensation in a particular case, after giving reasonable notice of such hearing to all interested parties in accordance with such rules and regulations as it may establish. At the hearing, any interested parties, including tenants, may present testimony and evidence, which shall be given under oath or by affirmation. The parties may also cross-examine any witness presenting testimony at a public hearing. A verbatim record of the hearing shall be made. The record shall be open to inspection by any person, and upon request by any party to the proceeding, the Cable Compensation Commission shall furnish such party a copy of the hearing record at such charges as are necessary to meet costs. The decision of the Commission shall become final unless an appeal is taken under this section within 30 days. (Prior code § 5A-13)

17.04.140 Appeals.

Within 30 days of the decision of the Cable Compensation Commission, any party to the proceedings before the Commission may petition the Circuit Court of the County where the property is located for review of the Commission’s decision. Such proceedings shall be in accordance with the provisions of the Constitution and laws of the State of Maryland governing eminent domain; and a property owner shall be entitled to a trial by jury on the question of compensation where and as required by Maryland law. (Prior code § 5A-14)

17.04.150 Rights and duties of tenants.

A. Every tenant shall have the right to purchase any combination of cable communications service options available to single-family dwellings in the City. Any tenant may decide not to purchase any cable communications service at all. A tenant who declines to receive any cable communications service shall not be required to pay or give anyone anything of value for such services.

B. No tenant shall be required to pay or give anything of value to a landlord or cable operator in order to receive cable communications services, except for the standard rates, including installation charges and fees, charged for provision of the same service to single-family dwellings in the City.

C. No tenant shall deny reasonable access to a rental unit for the purpose of installation of cable communications equipment or making the premises cable-ready. (Prior code § 5A-15)

17.04.160 Charges and billing.

A. A landlord may, at the landlord’s option, choose to institute a system of bulk billing for cable communications services if offered by the cable operator; provided, however, that the landlord shall:

1. Itemize the cost of cable communications service separately in any bill, statement, receipt or other similar writing provided to the tenant, in such a manner that the cost of cable communications service is clearly identifiable;

2. Allocate the cost of any cable communications service only among those tenants receiving the service. In the event that a landlord seeks a rent increase in excess of that automatically permitted by law, the landlord shall not assert any overhead or other costs associated with bulk billing for cable communications services as the basis for such increase;

3. Deliver the following notice to each tenant receiving cable communications service on or before the commencement of the service for that tenant and thereafter no less often than annually:

Under Takoma Park law, you cannot be charged any more for cable service than someone receiving the same service in a single-family home in Takoma Park.

You have the choice of taking any cable service option or combination of cable service options or no cable service at all.

You cannot be required to pay for any cable service you do not choose to take.

Your landlord must itemize the cost of cable service for you, separately from rent or any other charges.

You are obligated to pay for cable services which you agree to receive or do receive (unless you have notified the cable operator you do not want such service, and it is delivered to you anyway). If you fail to pay for cable services which you are legally required to pay, the cable operator may terminate cable service to you and/or sue you for any money you owe. Your landlord, however, may not sue you or evict you for nonpayment of cable fees.

B. In no event shall any tenant be required to pay any charge for cable communications services which exceeds the standard rate charged for the same tier or level of service to single-family dwellings in the City.

C. No tenant who has a contract with a cable operator for cable communications services, whether or not payment for such services is made directly to the cable operator, through the landlord to the cable operator or otherwise, may be evicted for non-payment for such services.

D. Any unpaid balance for cable communications services shall be a debt of the tenant to the cable operator only.

E. In the event that a landlord is authorized to collect payment for cable communications services on behalf of a cable operator, the landlord shall be required to provide each tenant receiving such service with a separate itemized bill for such service and to collect as separate payments any amounts due for cable services and any amounts due for rent. In the event that a tenant makes a single payment without distinguishing the amount attributable to cable services and the amount attributable to rent, the amount paid by the tenant shall first be credited as rent paid and then as payment for cable services. Nothing contained herein shall be construed as preventing a cable operator from terminating service or from seeking any other legal or equitable relief for nonpayment for cable communications services or any other breach of contract.

F. It is unlawful for a landlord to terminate cable communication services.

G. Where a landlord has instituted a system of bulk billing for cable communications services and fails to remit the full amount of payments by tenants promptly to the cable operator in accordance with any agreement between the landlord and the cable operator, any franchise agreement or any other provision of law, such failure shall not constitute grounds for termination of cable communications service to the tenant or tenants in question. In such a situation, the cable operator may choose to change prospectively to direct billing of such tenants or take any other action permitted by its agreements, including any action to recover from the landlord those. amounts not remitted by the landlord.

H. No landlord shall charge or collect from a tenant a security deposit for any cable communications equipment necessary to deliver cable communications services requested by the tenant. The cable operator may require a security deposit to be paid directly to the cable operator by the tenant. (Prior code § 5A-16)

17.04.170 Enforcement.

This article may be enforced by the City or any aggrieved party, including a tenant, in any court of competent jurisdiction, at law or in equity. (Prior code § 5A-17)

17.04.180 Other remedies.

Without limitation or election against any other available remedy, the City or any other aggrieved party may apply to the Circuit Court of the County where the property is located for an injunction enjoining any violation of this article. The Court shall award attorney’s fees and costs to any party who succeeds in obtaining an injunction hereunder. (Prior code § 5A-18)

17.04.190 Violations and penalties.

In addition to the foregoing, any violation of this article shall be a Class C offense. Each unit with respect to which the violation exists and each month or other billing cycle for which a violation exists shall constitute a separate and distinct violation. (Prior code § 5A-19)

Article 3. Municipal Channel

17.04.200 Exemption of cable services procurement from competitive bidding.

The procurement of municipal cable services is exempted from the provisions of Sections 17.08.040 through 17.08.080, and all other provisions or regulations relating to competitive bidding. Upon receipt of both certification from the State of Maryland of TPCT’s status as a duly-organized nonprofit corporation and a bona fide application to the Internal Revenue Service for 501-C(4) status, the City Administrator is authorized to enter into a contract with TPCT for the operation of the Takoma Park municipal channel. (Prior code § 5A-20)