Chapter 5.30 CABLE COMMUNICATIONS

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. 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 include the plural number.

“Applicant” means any person or corporation submitting an application for a cable communications franchise.

“Basic service” means that service regularly provided to all subscribers at a basic monthly rate including, but not limited to, the retransmission of local and distant broadcast television signals, nonpremium satellite services, automated services, local origination and access services.

“Cable communications system” or “CATV system” means a system employing antennas, microwave, wire, waveguides, coaxial cables, or other conductors, equipment or facilities designed, constructed or used for the purpose of:

1. Collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them;

2. Transmitting original cablecast programming not received through television broadcast signals;

3. Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

4. Transmitting and receiving all other signals: digital, voice, audio-visual, or other forms of electronic or electrical signals.

“Channel” means a six megahertz (MHz) frequency band which is capable of carrying either one standard audio/video television signal, or a number of audio, digital or other nonvideo signals.

“City” means the City of Newberg, a municipal corporation of the State of Oregon, in its present incorporated form or in any later reorganized, consolidated enlarged or reincorporated form.

“City council” or “council” means the legislative body of the City of Newberg.

“City manager” means the city manager of the City of Newberg.

“Community access channel” or “access channel” means any channel or portion of a channel utilized for programming on a nonprofit basis.

“Educational channel” means any channel or portion of a channel on which educational institutions are the only designated programmers.

“Entertainment services” means television services provided on a one-way noninteractive basis including but not limited to broadcast channels, local origination channels, pay channels or any other channels supplied to subscribers at a basic or premium charge where the content of the transmitted signals is uniform to all subscribers or individual classes of subscribers and program selection is accomplished by operation of a tuner or converter under the sole control of the subscriber.

“Federal Communications Commission” or “FCC” means the present federal agency of that name as constituted by the Communications Act of 1934, or any successor agency created by the United States Congress.

“Franchise” means any authorization granted hereunder in terms of a franchise, privilege, permit or license to construct, operate and maintain a cable television system within the City of Newberg. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the city as required by other ordinances and laws of this city.

“Government channel” means any channel or portion of a channel dedicated to the use of the municipal agencies.

“Grantee” or “franchisee” means a holder of a cable television franchise issued by the city.

“Grantor” means the City of Newberg acting through its city council.

“Gross revenues” means any and all compensation in whatever form, directly or indirectly received by grantee, from the source specified, not including any taxes on services furnished by the grantee, which taxes are imposed directly on a subscriber or user by a city, county, state or other governmental unit, and collected by the grantee for such entity.

“Institution” means a building or buildings where service may be utilized in connection with a business, trade, profession, public agency or service, or nonprofit organization.

“Institutional network” means a cable communications network designed principally for the provisions of nonentertainment interactive services to businesses, schools, public agencies or other nonprofit agencies for use in connection with the on-going operations of such institutions.

“Institutional services” means services delivered on the institutional subscriber network.

“Institutional subscriber” means a place of business, public agency, school or nonprofit corporation receiving institutional services on the institutional subscriber network.

“Interactive services” means services provided to subscribers where the subscriber either (1) both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under the subscriber’s control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other location for any purpose.

“Leased channel” means any channel or portion of a channel where the grantee is the only designated programmer, and which is utilized to provide television programs to subscribers.

“Local origination channel” means any channel or portion of a channel where the grantee is the only designated programmer, and is utilized to provide television programs to subscribers.

“Nonbasic service” means any communications service in addition to “regular subscriber services” including but not limited to access channel carriage including origination programming, pay television, burglar alarm service, fire alarm service, data transmission, facsimile service, home shopping service, and the like.

“Pay channel” or “premium channel” means a channel on which television signals are delivered to subscribers for a special charge fee or charged to subscribers over and above the regular charges for basic subscriber service, on a per-program, per-channel, or other subscription basis.

“Person” means any corporation, partnership, proprietorship, individual or organization authorized to do business in the State of Oregon.

“Premium service” means pay-per-program, pay-per-channel, or other subscription service, i.e., delivered to subscribers for a fee or charge over and above the regular charges for basic services.

“Public access channel” means any channel or portion of a channel where any member of the general public may be a programmer on a first-come, first-served basis, subject to appropriate rules formulated by the city and/or franchisee.

“Residential services” means services delivered on the residential subscriber network.

“Residential subscriber” means a subscriber who receives residential services on the residential subscriber network.

“Residential network” means a cable communications network designated principally for the delivery of entertainment, community access or interactive services to individual dwelling units.

“Streets,” “public ways” and “rights-of-way” mean the surface of and the space above and below any public street, avenue, highway, boulevard, concourse, driveway, bridge, tunnel, park, parkway, sidewalk, waterway, dock, pier, alley, right-of-way, public utility easement, and any other public ground or water, now or hereafter, within or belonging to the city.

“Subscriber” means any person or institution that elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system, whether or not a fee is paid for such services.

“Tapping” means observing a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever. [Ord. 2046, 2-26-81. Code 2001 § 111.02.]

5.30.030 Permits and construction.

A. Obtaining Permits and Authorizations – Copies to Be Submitted.

1. Within 30 days after acceptance of a franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, encroachment permits, microwave carrier licenses, and any other permits, licenses and authorizations to be granted duly constituted regulatory agencies having jurisdiction over the operation of cable television/communications systems, or associated microwave transmission facilities.

2. In connection therewith, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the grantee’s cable communications operations shall also be submitted simultaneously to the city manager.

B. Within 60 days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, grantee shall commence construction and installation of the cable communications system.

C. Within 180 days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter, so that service to all of the areas designated and scheduled on the map and plan of construction are made part of the franchise and shall be provided as set forth therein.

D. Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein shall be grounds for termination of such franchise. By resolution and order, the city council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond the grantee’s control.

E. Poles, Conduits and Other Facilities.

1. The grantee shall utilize existing poles, conduits, and other facilities whenever possible and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property unless and until first securing the written approval of the city’s director of public works.

2. Whenever the grantee shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the city shall undertake a program designated to cause all conduits and other facilities to be located beneath the surface of the streets in any area of the city, in the exercise of its police power or pursuant to the terms of this chapter, upon reasonable notice to the grantee, the city may require any such to be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of the grantee, whose costs shall be determined as in the case of public utilities.

F. The city shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled, or maintained exclusively by or for the grantee in any street, provided such use by the city does not interfere with the use by the grantee.

G. Underground Facilities.

1. Per NMC 5.30.240, in those areas of the city where the transmission of distribution facilities of the respective public utilities providing telephone, communication and electric services are underground, or hereafter are placed underground, the grantee likewise shall construct, operate and maintain all of the grantee’s transmission and distribution facilities underground. When directed by the city, previously installed aerial cable shall be undergrounded in concert, and on a cost-sharing basis, with the utility companies involved pursuant to the general ordinances of the city or applicable state laws.

2. The term “underground” shall include a partial underground system; provided, that upon obtaining the written approval of the city, amplifiers in the grantee’s transmission and distribution lines may be placed in appropriate housing upon the surface of the ground.

H. Property Removal, Relocation, Etc. – Property Abandonment.

1. The grantee at the grantee’s expense shall protect, support, temporarily disconnect, relocate, or remove any property of the grantee when, in the opinion of the city manager, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction; change or establishment of street grade, installation of wastewater systems, drains, water pipes, power lines, signal lines, transportation facilities, tracks, or any other types of structures or improvements by governmental agencies whether acting in a governmental or proprietary capacity, or any other structure of public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground.

2. The grantee may, at the sole option of the city, have the privilege, subject to the corresponding obligations, to abandon property of the grantee in place. A permit to abandon in place must first be obtained from the city director of public works. Nothing hereunder shall be deemed a taking of the property of the grantee, and the grantee shall be entitled to no surcharge by reason of anything hereunder.

I. Upon the failure, refusal, or neglect of the grantee to cause any work or other act required by law or hereunder to be properly completed in, on, over, or under any street within any time prescribed, or upon notice given, where no time is prescribed, the city manager may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to the grantee an itemized statement of the costs of the work. The grantee shall, within 30 days after receipt of such statement, pay to the city the entire amount.

J. Property Removal Ordered When.

1. In the event that:

a. The use of any part of the system of the grantee is discontinued for any reason for a continuous period of 30 days, without prior written notice to and approval by the city; or

b. Any part of such system has been installed in any street or other area without complying with the requirements of this chapter and/or the franchise ordinance; or

c. Any franchise shall be terminated, cancelled or shall expire, then the grantee shall, at the option of the city, and at the expense of the grantee and at no expense to the city, and upon demand of the city, promptly remove from any streets or other area all property of the grantee, and the grantee shall promptly restore the street or other area from which such property has been removed to such condition as the city director of public works shall approve.

2. The city council may, at its sole option, upon written application by the grantee, approve the abandonment of any such property in place by the grantee. Upon abandonment of any such property in place, the grantee shall cause to be executed, acknowledged, and delivered to the city such instruments as the city attorney shall prescribe and approve, transferring and conveying the ownership of such property to the city. [Ord. 2046, 2-26-81. Code 2001 § 111.03.]

5.30.040 Indemnifications.

A. Upon being granted a franchise, and upon filing of the acceptance required, the grantee shall, at the grantee’s sole expense, obtain, file with the city, and, unless otherwise authorized by the city council, thereafter maintain during the full term of such franchise or any renewal of the franchise plus an additional six months thereafter, a corporate surety bond or other adequate surety agreement in such form and amount, not to exceed the penal sum of $100,000, as shall have been approved by the city attorney.

B. Within 30 days after the effective date of any franchise, unless otherwise authorized by the city council, the grantee shall deposit into a bank account, established by the city manager, and maintain on deposit through the term of the franchise, a security fund of not less than $15,000, as security of faithful performance by it of all provisions of the franchise, and compliance with all provisions of the franchise, and compliance with all orders, permits and directions of any agency of the city having jurisdiction over its acts or defaults under the contract, and payment by the grantee of any claims, liens and taxes due the city which arise by reason of the construction, operation or maintenance of the system. The grantee shall be entitled to all interest earned on such account.

1. Within 30 days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to subsection (B) of this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount of $15,000.

2. If the grantee fails, after 10 days’ notice, to pay to the city any taxes due and unpaid; or fails to repay to the city within such 10 days any damages, costs or expenses which the city shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or, fails after 30 days’ notice of such failure by the city to comply with any provision of the franchise which the city reasonably determines can be remedied by an expenditure of the security, the city manager may immediately withdraw the amount, with interest and any penalties, from the security fund. Upon such withdrawal, the city shall notify the grantee of the amount and date.

3. The security fund deposited pursuant to this section shall become the property of the city in the event that the franchise is cancelled by reason of default of the grantee or revoked for cause. The grantee, however, shall be entitled to the return of such security fund, or portion of the security fund, as to the franchise expiration or upon termination of the franchise at an earlier date; provided, that there is then no outstanding default on the part of the grantee.

C. By accepting a franchise, each grantee shall be deemed to have agreed to indemnify and hold harmless the city, its officers, boards, commissions, agents, consultants, and/or employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including, but not limited to, damages to city property and damages arising out of copyright infringements, and damages arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee’s cable communications system), costs or liabilities (including costs of the city with respect to its employees), of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same, including any attorneys’ fees, accountants’ fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by the grantee, or the granting of a franchise by the city.

1. Alternatively, in the discretion of the city council, the city may, on behalf of itself, and/or any of its officers, agents, consultants, or employees, elect to employ, at the grantee’s expense, attorneys to appear and defend such actions.

2. The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against the grantee, the city, its officers, boards, commissions, agents, consultants, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, security deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither the grantee nor the city shall make or enter into any compromise or settlement of any claim, demand, cause of action, suit or other proceedings, without first obtaining the written consent of the other.

D. Upon being granted a franchise, and upon the filing of the acceptance required under NMC 5.30.170, the grantee shall file with the city recorder and shall thereafter, during the entire term of such franchise, maintain in full force and effect each of the following policies of insurance:

1. General comprehensive liability insurance in a form satisfactory to and an amount approved by the city manager, together with bodily injury and property damage liability insurance with such limits as may be required by the city council, but not less than $500,000 for each person injured, and $1,000,000 aggregate per single accident or occurrence, and $500,000 for property damage. Such policies shall provide they cannot be cancelled unless at least 30 days’ prior written notice of intent to terminate or cancel has been given to the city.

a. The city shall be named as an additional insured in any of said insurance policies.

b. Where such insurance is provided by a policy which also covers the grantee or any other entity or person, it shall contain the standard cross-liability endorsement.

2. Workers’ compensation insurance coverage in at least the minimum amounts required by law. If a grantee fails to obtain or maintain such required insurance coverage, the city may, without notice to the grantee, obtain, at the grantee’s sole expense, such coverage, or forthwith terminate, without prior notice, the franchise as granted.

E. Any of the indemnifications specified in this section may be reduced, in part or whole, in term or amount by the city council after three years from the date of award of the franchise if the purpose of the above required bond, security fund or insurance is deemed by the city council to have been served and no longer required. Once reduced, in part or whole, the full requirements, in term and amount, may be reimposed as indicated above at the city council’s sole discretion and at the grantee’s sole expense. [Ord. 2046, 2-26-81. Code 2001 § 111.04.]

5.30.050 Conditions on rights-of-way occupancy.

A. Any pavements, sidewalks, curbing or other paved area taken up or any excavations made by a grantee shall be done under permits issued for the work by the proper officials of the city, and under their supervision and direction, and shall be done in such manner as to give the least inconvenience to the inhabitants of the city. A grantee shall, at its own cost and expense, and in a manner approved by the proper city officials, replace and restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturbance was done and shall also make and keep full and complete plats, maps and records showing streets, rights-of-way, and easements of the city. These maps shall be available for inspection at any time during business hours by city officials.

B. A grantee shall, at its expense, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions, public safety, road construction, change of street grade, installation of wastewater systems, drains, water pipes, power lines, signal lines, tracks, or any other type of municipal improvements; provided, however, that the grantee may, at the sole option of the city, have the privilege of abandoning property in place.

C. A grantee shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 48 hours’ advance notice to arrange for such temporary wire changes.

D. A grantee shall have authority to trim the trees upon and overhanging the public streets so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, under the same rules and regulations applied to public utilities within the city, except that, at the option of the city council, such trimming may be done by it or under its supervision and direction at the expense of the grantee.

E. In all sections of the city where the cable, wires or other similar facilities of public utilities are placed underground, the grantee shall place its cables, wires, or other like facilities underground to the maximum extent that existing technology reasonably permits the grantee to do so.

F. In all sections of the city where wires, cables and other system appurtenances are mounted above ground, every reasonable effort shall be made to minimize obstruction of the view of residents, and every reasonable effort shall be made to preclude an unsightly system installation. [Ord. 2046, 2-26-81. Code 2001 § 111.05.]

5.30.060 Rights reserved to city.

A. Nothing herein and/or in the franchise shall be deemed or construed to impair or affect, in any way, to any extent, the right of the city to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted thereby, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the city’s right of eminent domain.

B. There shall be reserved to the city every right and power which is required to be reserved or provided by law, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or agreements of the city in its exercise of such rights of power, theretofore or thereafter enacted or established.

C. Neither the granting of the franchise nor any provision of the franchise shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

D. The city reserves to itself the right to intervene in any suit, action, or proceeding involving any provision of this chapter and/or the grantee’s franchise. The city council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and/or the grantee’s franchise, and may determine any question of fact which may arise during the existence of any franchise granted. The city council, with the approval of the city attorney, is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under the franchise, either on behalf of the city, the grantee, or any subscriber, in the best interest of the public.

E. The city, at its option, when for sufficient cause as deemed by the city manager, may require that the annual proof-of-performance test, addressed in NMC 5.30.230, be conducted or observed by a qualified member of the city’s staff or its designated representative. The city reserves the right to have the measurements, associated with city-observed performance tests, conducted at city-selected test points and to a greater number of test points than the minimum required by Section 76.601, FCC Rules.

F. Any delegatable right, power or duty of the city council, the city or any officials of the city may be transferred or delegated to an appropriate officer, employee, or department of the city.

G. The city reserves the right to promulgate other reasonable technical and operational performance standards for system franchises granted pursuant to this chapter.

H. The city reserves the right to enact reasonable regulations pertaining to franchises granted pursuant to this chapter which may include, but are not limited to:

1. Construction and use of poles;

2. Use of poles and conduits by the city;

3. Common user;

4. Filing of pole user agreement;

5. Reservation of street rights;

6. Restoration of streets;

7. Movement of facilities; and

8. Trimming of trees.

I. The city reserves the right to further regulate the conduct of the grantee in regard to the privacy and property rights of private citizens. Such regulations may include but are not limited to the security of all records maintained by the practices relating to such records and any other matters related to privacy and individual rights.

J. The city reserves the right to establish a cable communications regulatory and advisory commission to assist the city council in regulating cable activity in the city. The members and duties of any such commission, if any, shall be established by the city council.

K. Should the State of Oregon or the federal government or agency of the State of Oregon or the federal government subsequently require the grantee to act in a manner which is inconsistent with any provisions of this chapter, franchise ordinance or associated resolutions and orders, the grantee shall so notify the city. Upon receipt of such notification, the city shall determine if a material provision of the franchise is affected. Upon such determination, the city shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter or the franchise ordinance. The city may terminate the franchise in the event the city determines the substantial and material compliance with the original proposed terms of the franchise have been frustrated by such state or federal requirement.

L. No grantee nor any major stockholder of a grantee shall directly or indirectly with the city use the position as cable grantee to gain a competitive advantage in the business of selling, leasing, renting, servicing or repairing radio or television sets or other receivers or parts of radio or television sets or other receivers, or data access and transfer equipment which make use of entertainment and information signals; provided, that nothing therein shall prevent the grantee from making modifications to the tuner input circuit of the subscribers’ communications transmitters and/or receivers, and the fine-tuning of the customers’ operating controls only, to ensure proper operation under conditions of cable connection at the time of installation or in repairing receivers and other equipment belonging to other cable system operators for use in the conduct of their businesses.

M. The grantee shall permit the city to fasten signs, wires, and cables and stretch such wires and cables on any and all poles of the grantee; provided, that the grantee shall not be responsible for any damage without the grantee’s fault resulting to the signs, wires, cables or property of the city resulting from such use of its poles by the city.

N. The grantee shall manage all of its operations in accordance with a policy of totally open books and records. The city shall have the right to inspect at any time during normal business hours, at the local and parent corporation offices of the grantee, all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the grantee. Access to the aforementioned records shall not be denied by the grantee on the basis that said records contain proprietary information.

O. Communications with Regulatory Agencies. Copies of all petitions, applications, communications, and reports submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications operations authorized pursuant to the franchise, shall also be submitted simultaneously to the grantor. Copies of responses or any other communications from the regulatory agencies to the grantee shall likewise be furnished simultaneously to the grantor.

P. Any intrastate interconnection of interactive services between the system operated by the grantee and any other system shall be subject to the regulatory authority of the city.

Q. The reservation of any particular right shall not be construed to limit the promulgation of other reasonable rules and regulations. [Ord. 2046, 2-26-81. Code 2001 § 111.06.]

5.30.070 Equal opportunity employment and affirmative action plan.

A. In the carrying out of the construction, maintenance and operation of the cable television system, the grantee shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, or national origin.

B. The grantee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: employment upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rate of pay or other form of compensation, and selection for training, including apprenticeship.

C. The grantee shall post in conspicuous places available to employees and applicants for employment notices setting forth the provisions of this nondiscrimination clause.

D. The grantee shall, in all solicitations or advertisements for employees placed by or on behalf of the grantee, state that all qualified applicants will receive compensation for employment without regard to race, creed, color, sex, or national origin.

E. The grantee shall incorporate the foregoing requirements in all of its contracts for work relative to construction, maintenance and operation of the cable television system, other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorporate such requirements in all subcontracts for such work. [Ord. 2046, 2-26-81. Code 2001 § 111.07.]

5.30.080 Adoption of rules and regulations.

A. At any time, the city council may adopt reasonable rules, regulations and standards governing the operation of cable communications systems in the city, consistent with the provisions of this chapter and the franchise ordinance. Such rules, regulations and standards shall apply to and shall govern the operations of the grantee of any cable communications franchise, and are expressly declared to be a part of any such franchise.

B. Prior to adopting any such rule, regulation, or standard, the city council shall conduct a duly noticed hearing. At the time set for such hearing, or at any adjournment of the hearing, the city council shall proceed to hear any relevant evidence relating to the matter. Thereafter, the city council, by resolution, may adopt, amend or modify such rules and regulations.

C. The standards adopted may govern the engineering, construction, installation, service, and maintenance of all cable communications systems in the city, including but not limited to standards governing carrier levels, signal-to-noise ratios, hum modulation, distortion levels, channel interactions and interactions, and composite beat levels. [Ord. 2046, 2-26-81. Code 2001 § 111.08.]

5.30.090 Amendments.

The city council shall amend this chapter and any franchise issued thereunder, upon its own motion or the application of a grantee, whenever amendment is necessary to enable a grantee to utilize new developments in television or radio signal transmission which would improve and update cable communications service in the city, or to comply with any modifications in the Rules of the FCC. Amendments to Section 76.31 of the FCC Rules will be incorporated into this chapter within one year of their adoption or at the time of franchise renewal, whichever comes first. No amendment shall be adopted except after full, open public hearing affording due process, and no amendment substantially amending the existing rights and obligations of the grantee shall be adopted without the grantee’s consent. [Ord. 2046, 2-26-81. Code 2001 § 111.09.]

5.30.100 Miscellaneous provisions.

A. A franchise granted to provide service within the city shall authorize and permit the grantee to solicit, sell, distribute, and make a charge to subscribers within the city for connection to the cable communications system of the grantee and shall also authorize and permit the grantee to traverse any portion of the city in order to provide services outside the city.

B. A franchise, easement, license or other permit to anyone other than a grantee to traverse any portion of the city in order to provide service outside the city shall not authorize or permit said person to solicit, sell, distribute, or make any charge to subscribers within the city, nor to render any service or connect any subscriber within the city to the cable communications service system of the grantee.

C. When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the city manager. [Ord. 2046, 2-26-81. Code 2001 § 111.10.]

5.30.110 Violations.

A. It shall be unlawful for any person to construct, install or maintain within any public rights-of-way in the city or within any other public property of the city, or within any privately owned area within the city which has not yet become a public right-of-way but is designated or delineated as a proposed public right-of-way on any tentative subdivision map approved by the city, any equipment or facilities for distributing any television signals or radio signals through a cable communications system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

B. It shall be unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise with any part of any cable communications system within this city for the purpose of enabling that person, firm or corporation or others to receive or use any television signal, radio signal, picture, program, sound, information, or other system service without payment to the owner of said system.

C. It shall be unlawful for any person, without the consent of the grantee, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs, sound, information, data, or other system service. [Ord. 2046, 2-26-81. Code 2001 § 111.11.]

Penalty: See NMC 1.05.200.

Article II. Franchise Requirements

5.30.120 Franchise necessary to install and operate.

A. It shall be unlawful to commence or engage in the construction, operation or maintenance of a cable communications system without a franchise issued under this chapter. The city council may, by ordinance, award a franchise to construct, operate and maintain a cable communications system within all or any portion of the city to any person, whether operating under an existing franchise or not, who makes application for authority to furnish a cable communications system which complies with the terms and conditions of this chapter; provided, that this section shall not be deemed to require the grant of a franchise to any particular person or to prohibit the city council from restricting the number of grantees should it determine such a restriction would be in the public interest.

B. Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a cable communications system in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along any street, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the city. [Ord. 2046, 2-26-81. Code 2001 § 111.20.]

Penalty: See NMC 1.05.200.

5.30.130 Term of franchise.

A. Any franchise granted by the city council shall be for a term of 15 years following the date such franchise is accepted by the grantee, and, upon application of the grantee and review of the performance of the grantee in a public proceeding, the city council may renew the franchise for a successive 15-year period, with such modification of the terms as the city council may determine in each instance.

B. The city council may terminate any franchise granted pursuant to the provisions of this chapter in the event of the willful failure, refusal or neglect by the grantee to do or comply with any material requirement or limitation contained in this chapter, or any other applicable rule or regulation of the city council or city manager validly adopted pursuant to this chapter.

1. The city manager may make written demand that the grantee comply with any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect continues after notice for an unreasonable period of time, determined as such by the city manager, following such written demand, the city manager may place request for termination of the franchise upon the next regular city council meeting agenda. The city manager shall cause to be served upon such grantee, at least 20 days prior to the date of such city council meeting, a written notice of the city manager’s intent to request such termination and the time and place of the meeting.

2. The city council shall consider the request of the city manager and shall hear any persons interested therein and shall determine, in its discretion, whether or not any failure, refusal or neglect by the grantee was with just cause.

3. If such failure, refusal or neglect by the grantee was with just cause, the city council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

4. If the city council shall determine such failure, refusal or neglect by the grantee was without just cause, then the city council may, by ordinance, declare that the franchise with such grantee shall be terminated and forfeited, and the grantee shall be required to sell all interests, and title in all of its plants and systems operated under the franchise including any rights under the unexpired portion of the franchise.

C. In the event of termination, the city may purchase, or require any successor grantee to purchase, the grantee’s facilities at a cost not to exceed its then fair market value, with a reduction for uncompensated damages incurred by the city in connection with the grantee’s operation.

1. In order to determine the fair market value of the grantee’s system as specified above, the following procedure will be followed. The grantee and the purchaser each shall select one qualified appraiser experienced in the evaluation of cable communications systems.

2. The two selected appraisers shall select a third appraiser. The three appraisers shall be employed to determine the fair market value of the grantee’s system. The fair evaluation shall be the average of the three evaluations of the appraisers. The appraisers shall be directed to reach their determination within 30 days. The grantee and the purchaser shall each pay 50 percent of the costs of employing such appraisers.

3. Upon determination of the fair market value, and upon payment of such sum by the purchaser, the grantee shall transfer all rights, titles, and interests in the subject property to the purchaser within 30 days.

D. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the right of the city to acquire the property of the grantee through the exercise of the right of eminent domain, nor any other of the rights of the city under the franchise or any other provision of the law.

E. In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the prior consent of the city, expressed by resolutions, the grantee shall pay to the city reasonable compensation and damages of not less than 100 percent of its gross revenue derived from all sources within the city during said period. [Ord. 2046, 2-26-81. Code 2001 § 111.21.]

5.30.140 Limitations of franchise.

A. Unless an exclusive franchise shall be expressly granted, any franchise granted under this chapter shall be nonexclusive and nothing herein shall be construed to prevent the city from granting identical or similar franchises to more than one person, within all or any portion of the city.

B. A grantee shall, at all times during the life of its franchise, be subject to the lawful exercise of the city’s police power and such reasonable regulations as the city council may subsequently promulgate thereunder.

C. Nothing contained in this chapter shall be deemed to prohibit in any way the right of the city to levy nondiscriminatory occupational license taxes on any activity conducted by the grantee.

D. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein, and/or in the ordinance granting the franchise.

E. Any privilege claimed by the grantee under its franchise, in any public way, shall be subordinate to the city’s use of the public way, and to any other prior lawful occupancy of the public way. The city reserves the right to reasonably designate where a grantee’s facilities are to be placed within the public ways.

F. Time shall be of the essence of any such franchise granted. The grantee shall not be relieved of the grantee’s obligations to comply promptly with any of the provisions of this chapter, or the ordinance granting the franchise, by any failure of the city to enforce prompt compliance.

G. Pole or Conduit Use.

1. Any such franchise granted shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the city, utility company, or from others maintaining utilities in the public ways.

2. Whenever in the judgment of the grantor it is deemed impracticable to permit erection of poles or construction of underground conduit system by any other utility which may at the time have authority to construct or maintain a conduit or poles in street area, the grantor may require the grantee herein to afford to such utility the right to use such poles or facilities of the grantee as the grantor finds practicable in common with the grantee, both parties sharing the costs incident thereto and under such rules and regulations as they may agree upon, but in case they fail to agree within a reasonable time, then upon such terms, conditions and regulations governing the same as the grantor may determine to be just and reasonable.

H. Any franchise granted shall be in lieu of any and all other conflicting rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the grantee, or any successor to any interest of the grantee, of or pertaining to the construction, operation or maintenance of any cable communications system in the city; and the acceptance of any franchise shall operate as between the grantee and the city, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the city to the effect that, as between the grantee and the city, and all construction, operation and maintenance by any grantee of any cable communications system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.

I. No franchise shall authorize the use of any public property other than public right-of-way and public utility easements owned by the city, unless such franchise or subsequent resolution of the city council expressly authorizes such other public property.

J. No franchise granted shall ever be given any value by any court or other authority, public or private, in any proceeding of any nature or character, wherein or whereby the city shall be a party or affected therein or thereby.

K. The grantee shall be subject to all provisions of the other ordinances, rules, regulations, and specifications of the city heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about public rights-of-way.

L. Any privilege claimed, under any such franchise granted, in any public right-of-way or other public property shall be subordinate to the public use and any other lawful use of the public right-of-way or other public property.

M. The grantee shall be subject to the provisions of the general laws of Yamhill County and the State of Oregon, or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted pursuant to this chapter, including but not limited to those pertaining to works and activities in and about state highways.

N. The grantee shall be prohibited from directly or indirectly doing any of the following:

1. Imposing a fee or charge for any service or repair to subscriber-owned receiving or transmitting devices except for the connection of its service or for the determination by the grantee of the quality of signal reception and/or transmission;

2. Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by the grantee;

3. Providing information concerning the viewing patterns of identifiable individual subscribers to any person, group or organization for any purpose.

O. Preemption of City Jurisdiction.

1. If the Federal Communications Commission or the Public Utilities Commission of the State of Oregon or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city, the jurisdiction of the city shall cease and no longer exist.

2. The preemption or preclusion of the exercise by the city of any of its police power shall not diminish, impair, or affect any other contractual benefit to the city of the grantee nor any other contractual obligation of the grantee under any franchise granted.

P. The form of the grantee’s contract with the subscriber shall also be subject to the approval of the city.

Q. It is not necessarily the city’s intention to prohibit the erection or controlled use of individual television antennas, and no one is or will be required to receive cable communications service or connect with a cable communications system.

R. Should the grantee ever fail to pay any sum of money to the city owing to the city under provisions of this chapter, or the franchise ordinance, when such sum becomes due and payable, the grantee shall pay interest to the city on the delinquent sum, until it is fully paid at two interest points above the prime rate of interest charged in the Newberg area as calculated by the city.

S. A franchise to proceed with construction or operation of a cable communications system shall not be construed as any limitation upon the right of the city to grant to other persons or corporations, rights, privileges or authority similar to or different from the rights of authority set forth herein or the franchise document itself, in the same or other street, alleys, public highways, public places, or other public rights-of-way by agreement, franchise, permit or otherwise.

T. Nothing in this chapter shall be construed to prohibit any person from constructing or operating any private noncommercial satellite receiving station to the extent permitted by city, county, state and federal law.

U. “The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by ordinance at the City of Newberg and no other purpose whatever.” Inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the city to include any other reasonable condition, limitation or restriction which it may deem necessary to impose in connection with the franchise pursuant to the authority conferred by provisions of this chapter. [Ord. 2046, 2-26-81. Code 2001 § 111.22.]

5.30.150 Franchise application procedures.

A. This chapter itself grants no authority to operate a cable communications system to any person(s). Such grants are only made by the adoption of a separate ordinance awarding a specific franchise to an applicant who has complied with the provisions of this chapter.

B. Each application for a franchise to construct, operate, or maintain any cable communications system(s) in this city shall be filed with the city recorder and shall contain or be accompanied by the following:

1. The name, address, and telephone number of the applicant;

2. A detailed statement of the corporate or other business entity organization of the applicant, including, but not limited to, the following and to whatever extent required by the city:

a. The names, residences and business addresses of all officers, directors and associates of the applicant.

b. The names, residences and business addresses of all officers, persons and entities having, controlling, or being entitled to have or control five percent or more of the ownership of the applicant and the respective ownership share of each such person or entity.

c. The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling the applicant in whole or in part or owned and controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby.

d. A detailed description of all previous experience of the applicant in providing cable television communications system service and in related or similar fields.

e. A detailed and complete financial statement of the applicant.

f. A statement identifying, by place and date, any and all cable television franchises awarded to the applicant, or its parent or subsidiary; the status of said franchises with respect to completion; the total cost of completion of such systems; and the amount of applicant’s and its parent’s or subsidiary’s resources committed to the completion of such systems.

3. A thorough, detailed description of the proposed cable communications system and plan of operation of the applicant which shall include, but not be limited to, the following:

a. A detailed map indicating all areas proposed to be served and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served.

b. A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those adopted by the Rules and Regulations of the Federal Communications Commission (contained in Title 47, Subpart K, Sections 76.601 et seq.), and as augmented and modified by the franchise awarded.

c. A detailed estimate of the cost of constructing the applicant’s proposed system.

d. A copy of the form of any agreement, undertaking or other instrument proposed to be entered into between the applicant and any subscriber.

e. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation, which materially relate or pertain to or depend upon the application and the granting of the franchise.

f. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and service charges.

4. A copy of any agreement existing between the applicant and any public utility subject to regulation by the Oregon Public Utilities Commission providing for the use of any facilities of the public utility, including but not limited to poles, lines and conduits, within the city and/or adjacent areas.

5. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the city council, or by any provision of any other ordinance of the city.

6. An application fee in a sum to be set by the city which shall be in the form of cash, certified or cashier’s check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration for the costs and not returnable or refundable in whole or in part, except to the extent that such fee exceeds the actual costs incurred by the city in studying, investigating and otherwise processing the application; provided, that any applicant who shall deliver to the city recorder a written withdrawal of or cancellation of any application within three business days following the day such application is received by the city recorder shall be entitled to have returned and refunded the sum of 50 percent of the fee less any actual costs or expenses incurred by the city by reason of such applications.

C. The city council may, by advertisement or otherwise, solicit for any other applications for cable communications system franchises and may determine and fix any date upon or after which the same shall be received by the city, or the date before which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions or limitations respecting the soliciting, calling for, making and receiving of such applications.

D. Upon receipt of any application for franchise, the city council shall refer the same to the ordinance committee which shall prepare a report and make its recommendations respecting such application and cause the same to be completed and filed with the city council within 90 days.

E. In making any determinations hereunder as to any application, the city council shall give due consideration to the character and quality of the service proposed, rates to subscriber, income to the city, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements, and any other consideration deemed pertinent by the city council for safeguarding the interest of the city and the public. The city council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding.

F. If the city council, after public hearing, shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected.

G. If the city council shall determine to further consider the application, the following shall be done:

1. The city council shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided.

2. The city council shall give notice of its intention to consider the granting of such a franchise, stating the name of the proposed grantee and that copies of the proposed franchise may be obtained at the office of the city recorder, fixing and setting forth a time and public place certain when and where interested parties may inspect all the bona fide applications, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting of the franchise may file written protests and appear before the city council and be heard, and directing the city recorder to publish notice of said resolution’s adoption at least once within 10 days of the passage of the resolution in a newspaper of general circulation within the city.

H. At the time set for the hearing, or at any adjournment of the hearing, the city council shall proceed to hear all written protests. Thereafter, the city council shall make one of the following determinations:

1. That such franchise be denied; or

2. That such franchise be granted upon such conditions as the city council deems appropriate, which conditions may include, on a not-to-exceed basis, where in accordance with applicable FCC regulations and state laws:

a. Charges for installation;

b. Subscriber rates;

c. Service rates for separate classifications of service such as additional connections.

I. If the city council shall determine that a franchise be denied, such determination shall be expressed by resolution; if the city council shall determine that franchise be granted, such determination shall be expressed by ordinance granting a franchise to the applicant. The action of the city council shall be final and conclusive.

J. The grantee shall pay to the city a sum of money sufficient to reimburse it for all expenses incurred by the provisions of this chapter, beyond those defrayed by application fees. Such payment shall be made within 30 days after the city furnishes the grantee with a written statement of such expenses. [Ord. 2046, 2-26-81. Code 2001 § 111.23.]

5.30.160 Applications for franchise renewal.

A. Any franchise may be renewed for a term not to exceed 15 years, at any time prior to the expiration of the same. An application for franchise renewal shall be submitted to the city manager containing the following information:

1. The information required pursuant to NMC 5.30.150(B)(1) and (2);

2. A map of the area proposed to be included in the franchise service area;

3. A schedule of rates and charges proposed;

4. A narrative and/or pictorial description of the facilities in place, and a narrative description of proposed additions and/or replacements thereto, if any.

B. Upon receipt of such an application the city manager shall review the same and forward to the city council a report containing the recommendation as to whether the renewal franchise should be granted or not. Upon receipt of such a report, the city council shall conduct a public hearing, noticed as is provided in NMC 5.30.150(G)(2). At the time of such hearing, or continuance of the hearing, the city council shall, based upon the application, report, and relevant evidence received, determine whether the public interest, convenience and necessity require the issuance of such franchise. If the city council determines to deny the application for renewal, it shall do so by resolution. If it determines that the said franchise should be granted, it shall do so in the manner provided in NMC 5.30.150(H)(2). In the event of nonrenewal or termination of a franchise, the city agrees to purchase, or to require any successor grantee to purchase, grantee’s facilities at a cost not to exceed its then fair market value, with a reduction for any uncompensated damages incurred by the city in connection with the grantee’s operation. If such fair market value cannot be agreed upon by the parties, it shall be determined by a three-member arbitration panel, in accordance with the arbitration process specified in NMC 5.30.130(C). The parties shall divide expenses of arbitration evenly among themselves. [Ord. 2046, 2-26-81. Code 2001 § 111.24.]

5.30.170 Acceptance of franchise.

A. No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance of the franchise shall have been filed with the city recorder. Written acceptance, which shall be in the form and substance approved by the city attorney, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this chapter, and in such franchise, or otherwise specified as herein and therein provided.

B. The written acceptance shall be filed by the grantee not later than 12:01 p.m. of the fortieth day next following the effective date of the ordinance granting such franchise; in the event this day falls on a nonworking day, then the next business day will suffice.

C. In default of the filing of such written acceptance as herein required, the grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the grantee shall not be received or filed by the city recorder. The grantee shall have no rights, remedies, or redress in the premises, unless and until the city council, by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the city council may impose.

D. In any case, and in any instance, all rights, remedies and redress in these premises which may or shall be available to the city, shall at all times be available to the city, and shall be preserved and maintained and shall continuously exist in and to the city, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise.

E. Any franchise granted and accepted under the ordinance shall be in lieu of any and all other conflicting rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the grantee, of or pertaining to the construction, operation, or maintenance of any cable communications system(s) in the city. [Ord. 2046, 2-26-81. Code 2001 § 111.25.]

5.30.180 Transfer or assignment of franchise.

A. Any such franchise shall be a privilege to be held in personal trust by the grantee. The franchise shall not be sublet or assigned, nor shall any of the rights or privileges therein granted or authorized be leased, assigned, mortgaged, sold, transferred, or disposed of, either in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in the person(s), except the grantee, either by act of the grantee or by operation of law, without the consent of the city expressed by ordinance.

B. The grantee shall promptly notify the city of any proposed change in, or transfer of, or acquisition by, any other party of control of the grantee with respect to which the consent of the grantor is required, pursuant to subsection (A) of this section. Such change of control shall make this franchise subject to revocation unless and until the city council shall have consented thereto.

C. Consent of the city council shall not be granted until it has examined the proposed assignee’s legal, financial, technical, character and other qualifications to construct, operate and maintain a cable communications system in the city and has afforded all interested parties notice and an opportunity to be heard on the question. The grantee shall assist the city in any such examination.

D. The said consent of the city council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the city council and must agree to comply with all provisions of the franchise and of this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed 50 percent of the market value of the property used by the grantee in the conduct of the cable communications system, prior consent of the city council shall be required for such a transfer. Such consent shall not be withheld unreasonably.

E. In the event that the grantee is a corporation, prior approval of the city council shall be required where there is an actual change in control or where ownership of more than 50 percent of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom already own 50 percent or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the city council shall constitute a failure to comply with a provision of this chapter within the meaning of NMC 5.30.130.

F. Any such transfer or assignment shall be made only by an instrument in writing, which shall include an acceptance of all terms and conditions of the franchise by transfer of a duly executed copy of which shall be filed with the city recorder within 30 days after any such transfer or assignment. [Ord. 2046, 2-26-81. Code 2001 § 111.26.]

5.30.190 Franchise fee.

A. In consideration of the granting and exercise of a franchise to construct and operate a cable communications system in the city, the grantee shall pay to the city during the life of the franchise a franchise fee equivalent to a percentage, as stipulated in the franchise ordinance, of the grantee’s gross revenues including, but not limited to, basic service revenues, nonbasic revenues, advertising revenues, lease revenues, and data transfer revenues, for the purpose of defraying administrative expenses associated with the conduct and performance of the city’s authority, responsibilities, and police power in the promotion of safety, convenience, comfort, prosperity, and general welfare of the citizens of the city, and in consideration of the city’s granting and the grantee’s exercising a franchise to use the streets, as defined in NMC 5.30.020.

B. The percentage payments shall be made in the manner, amounts and at times directed in the franchise ordinance.

C. At the discretion of the city council, a percentage or portion of the fee payments may be earmarked to assist in the funding of certain nonbasic services; e.g., public and educational access, and the like.

D. A grantee shall file with the city manager, within 90 days after the expiration of any calendar year or portion of a calendar year during which its franchise is in force, a financial statement, for the grantee’s Newberg operations, certified by a responsible officer of the grantee, showing in detail the gross revenues, as defined herein, of the grantee during the preceding calendar year or portion of a calendar year. Additionally, the grantee shall submit to the city copies of all FCC Form 325 and 326 reports (and any future revisions or replacements of those reports) within 10 days after submission to the FCC.

E. The city or its representative shall have the right to inspect the grantee’s records to determine if proper payments have been made to the city. The cost of such audits shall be borne by the grantee if the same results in increasing, by more than two percent, the grantee’s annual payment to the city. [Ord. 2046, 2-26-81. Code 2001 § 111.27.]

Article III. System Services – Operating Regulations

5.30.200 Cable communications services.

A. Basic Service. A cable communications system to be installed and operated pursuant to this chapter and a franchise granted hereunder shall:

1. Be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of what the grantee is now or thereafter authorized by the Federal Communications Commission; and

2. Distribute color television signals which it received in color; and

3. Provide channel capacity and basic equipment for program production in cablecasting for educational and public access uses, and for use of the city per NMC 5.30.300; and

4. Have a minimum capacity of 41 downstream video channels; and

5. As a minimum, have the capability of being converted at any time to provide full reverse transmission (two-way transmission) in any portion of the system or trunk by adding appropriate reverse amplifier modules. Further, the two-way capability shall be fully activated from production facilities in those sites specified in the cable communications franchise granted pursuant to this chapter.

B. Nonbasic Services. The cable communications system permitted to be installed and operated pursuant to this chapter may also engage in the business of:

1. Transmitting original cablecast programming not received through television broadcast signals;

2. Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers;

3. Transmitting and receiving all other signals; digital, voice and audio-visual, and the like.

C. Emergency Service. The grantee shall design and construct the system to provide for a restricted audio and video override of video channels during emergencies as per NMC 5.30.310. [Ord. 2046, 2-26-81. Code 2001 § 111.40.]

5.30.210 Service area.

The grantee’s system design and construction shall be such that service shall be made available to all residential units within the grantee’s service area, as defined in the franchise, for the normal installation fee, with the exception that in those locations where the dwelling units per strand mile of system plant are less than the dwellings per mile figure stipulated in the franchise ordinance, the grantee shall provide cable service on a pro rata sharing of the installation costs with the potential subscribers. The pro rata sharing of those costs will be in accordance with the formulation set forth in NMC 5.30.220. [Ord. 2046, 2-26-81. Code 2001 § 111.41.]

5.30.220 System extension.

A. The grantee shall extend residential and institutional (the latter as required by the city) service into every new subdivision and/or development and/or newly incorporated/annexed area. Those new areas having more dwelling units per strand mile of plant than the number stipulated in the franchise ordinance shall receive residential service for the normal installation fee. The capacity to provide cable communications service shall be available to newly constructed structures on the date of first occupancy. Actual installation of service may be delayed up to 60 days from first occupancy or until after final grading, whichever is first. In those areas where the number of dwelling units per strand mile is less than the number stipulated in the franchise ordinance, the grantee will provide residential cable service on a pro rata sharing of the installation costs with the potential subscriber(s). Grantee will bear its pro rata share of the then current mile of plant construction cost based on a multiple of the actual number of potential subscribers per mile divided by the number of dwellings per mile stipulated in the franchise ordinance.

B. The remaining construction cost will be borne on the prorated basis by each applicant committing to service within the extension area. Mileage will be measured from the nearest point on the nearest trunk line. Example: If it requires one mile of plant extension at $10,000 per mile of construction to serve 20 potential subscribers, and if the franchise stipulated dwellings per mile were 24, the grantee would pay $10,000 times 20 divided by 24, or $8,333, as its share of the extension cost. The remaining $1,667 cost would be divided equally among the 20 potential subscribers or each would pay an $84.00 installation fee assuming all 20 become subscribers. The above formula applies to individual installation distances, as stipulated in the franchise ordinance, or less. For distances in excess of the stipulated distance, there may be an additional charge for that distance in excess. [Ord. 2046, 2-26-81. Code 2001 § 111.42.]

5.30.230 Systems design, construction and technical performance standards.

A. Standards of cable communications system(s) construction, safety, and operation will meet, but not be limited to, the following referenced specifications, unless exception is agreed upon between the city and the grantee.

1. Applicable city, county, state and national/federal codes and ordinances as they apply to the construction of buildings, tower structures, and cable system installation;

2. Applicable utility joint attachment practices;

3. National Electrical Safety Code, NFPA No. 70;

4. Local utility code requirements;

5. Local right-of-way procedures.

B. The overall system(s) will be designed and constructed to meet all FCC technical performance specifications and standards over a temperature range of plus or minus 50 degrees Fahrenheit from the mean temperature of the Newberg area, and to function throughout all environmental extremes expected.

C. The forward portion of any cable communications system shall be capable of initial activation of a minimum carriage of 41 Class I television channels, the full FM broadcast band, and for pilot carriers or such auxiliary signals as required for system control.

D. The combined forward trunk and distribution system will deliver signals to each and every subscriber’s receiver that will meet or exceed the franchise ordinance specifications at the mean system temperature plus or minus 50 degrees Fahrenheit, unless otherwise indicated. This shall include the effects of drop cables, interior splits, and any terminal equipment such as descramblers and set top converters.

E. The reverse portion of the residential system shall be capable of initial activation of a minimum of five to 30 MHz in bandwidth, with return signals from each subscriber and institutional (including all schools) signal source to the extreme end of any area in compliance with the specifications set forth in the franchise ordinance.

1. Where applicable, the end of the system specifications shall include the effects of any signal reprocessing equipment necessary to achieve forward transmission.

2. For Class I signals, the signal delivered to the subscribers’ TV receiver, after being transmitted to the head-end, processed and retransmitted down a forward channel shall meet the specifications of the franchise ordinance.

F. All cable communications systems authorized to be constructed and operated pursuant to this chapter shall, insofar as financially and technically feasible, be compatible one with another. Signal specifications compliance determination for forward and/or institutional channels interchanged between other cable communications systems and a grantee’s system are to be determined by applying the combined contribution of distortion of all pertinent components of the worst case (temperature and location) signal path. The combined contribution shall meet or exceed the specified technical specifications at the termination of the worst case signal path the channel could encounter. At the interconnect point the party delivering a channel or channels will provide signals, transported either in the forward or reverse system to the interconnect point, that meet or exceed the franchise ordinance specifications at the mean system temperature plus or minus 50 degrees Fahrenheit. The signals are to be in compliance as stated at a point which best represents the most direct signal path between the party providing the signal and the party receiving the signal. Only one such interconnect point is to be specified for all signal exchanges.

G. A comprehensive routine preventative maintenance program shall be developed, effected and maintained for each system by the respective grantee to ensure continued top quality cable communications operating standards in consonance with FCC Part 76 and the technical specifications stipulated in the franchise ordinance.

H. No newly constructed system services shall be offered for sale prior to proof-of-performance testing in accordance with FCC Part 76.601 and technical specifications and standards listed in the franchise ordinance. This initial proof-of-performance testing, and annual proof-of-performance testing, may be conducted by the city, or its designated representative, at the city’s option, when sufficient cause is deemed by the city council, or its designated representative. The city reserves the right to have the measurements, associated with city-observed performance tests, conducted at city-selected test points and to a greater number of test points than the minimum required by Subpart 76.601, FCC Rules. Additionally, the grantee shall reimburse the city for all expenses incurred by it in connection with the city conducting or observing the annual performance tests, when the results of those tests are deemed by the city to fall below a 90 percent level of compliance with the technical standards set forth in FCC Part 76 and in the franchise ordinance.

I. Grantee’s proof-of-performance testing procedures must be approved by the city for implementation prior to the initial proof-of-performance testing addressed in subsection (H) of this section. The results of performance tests conducted in accordance with Section 76.601(c), FCC Rules (or such other section of the rules as shall incorporate its substance) shall be retained for at least five years and be available for inspection by the city.

J. All system antennas and mounts shall be designed, installed and constructed for extremes in temperature, wind and ice loading. Antennas should be able to withstand 100 mile per hour winds with one-inch radial ice load.

K. All underground cable should be flooded and be armor-clad cable and/or installed in conduit, unless specifically exempted by the city director of public works, on a case-by-case basis.

L. Residential and institutional drop cables should be of the integral steel messenger variety where exposed to the possible accumulation of ice and a double-shielded type and fitted with sealed hex crimp ring high integrity connectors.

M. Polyethylene jacketed cable should be used in any and all areas of the plant where airborne heavy chemical particles can be expected.

N. The grantee’s corrective maintenance program shall render efficient corrective service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions shall be preceded by notice and shall occur during a period of minimum use of the system. A written log shall be maintained of all service interruptions. The log shall reflect the date, time, duration, and reason for each service interruption. The record of the log shall be kept on file by the grantee for a minimum of three years. [Ord. 2046, 2-26-81. Code 2001 § 111.43.]

5.30.240 Undergrounding of cable lines.

A. In those areas and portions of the city where the transmission and/or distribution facilities of the public utility providing telephone service, and those of the utility providing electric service, are underground or hereafter may be placed underground, or are to be placed underground by a builder, developer or subdivider as part of a development or subdivision, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground.

B. In new developments or subdivisions the builder, developer or subdivider shall be responsible for the performance of all necessary trenching and backfilling of main line and service trenches, including furnishing of any imported backfill material required. Prewiring of new dwellings while under construction is mandatory. Amplifiers in the grantee’s transmission and distribution line may be in concrete boxes, pedestals or vaults on the surface of the ground. The grantee will be responsible for the conduct of the engineering and labor to put the cable conduit in the trench. The grantee will be responsible for pulling in the cable, and providing the pedestal amplifiers, electronics, stub ends and drops to individual homes, after occupancy.

C. In those areas and portions of the city heretofore designated by the city as local improvement districts and where utility service facilities are currently located underground, the grantee shall be responsible for the undergrounding of cable facilities including the performance of all necessary trenching and backfilling of main line and service trenches, and the furnishing of any imported backfill material required. Amplifiers in the grantee’s transmission and distribution lines may be in concrete boxes, pedestals or vaults on the surface of the ground.

D. Previously installed aerial cable shall be undergrounded in concert, and on a cost-sharing basis, with other utilities pursuant to the general ordinances of the city or applicable state law, or in the event such action shall be taken by all other utilities on a voluntary basis. [Ord. 2046, 2-26-81. Code 2001 § 111.44.]

Cross-reference: See ORS 758.210 – 758.270 pertaining to conversion of underground facilities.

5.30.250 System maintenance.

Throughout the life of a grantee’s franchise, and in addition to other service regulations adopted by the city council, and excepting circumstances beyond the grantee’s control, such as acts of God, riots and civil disturbances, and in providing the foregoing services, a grantee shall:

A. Maintain all parts of its system in good condition and in accordance with standards generally observed by the cable television industry. The system must serve individual residents, but also serve as a broad-based communications source for city government, other public facilities including hospitals, public libraries and schools, and industrial and commercial business users.

B. Retain sufficient employees to provide safe, adequate and prompt service for all such residential subscribers, institutional facilities and business users.

C. Limit system failures to minimum time duration by locating and correcting malfunctioning as promptly as is reasonably possible, irrespective of holidays or other nonbusiness hours. [Ord. 2046, 2-26-81. Code 2001 § 111.45.]

5.30.260 Emergency power.

Emergency power sources shall be provided by grantee at the head-end, network distribution center, satellite earth station, processing hubs, and other system locations as may be necessary to guarantee that in the event of a power failure on any part of the system, service will be maintained on the rest of the system. [Ord. 2046, 2-26-81. Code 2001 § 111.46.]

5.30.270 Rules and regulations for subscriber service standards.

A. It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the grantee are honored. Neither the city nor the grantee shall, as to rates, charges, service, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to prejudice or disadvantage.

B. Before providing cable television service to any subscriber, the grantee shall provide a written notice to the subscriber substantially as follows:

Subscriber is notified that in providing cable television/communications service the grantee is making use of the public rights-of-way within the City of Newberg and that the continued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to grantee for any reason, grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television/communications service, subscriber agrees subscriber will make no claim nor undertake any action against the City, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued.

C. There shall be no charges for service calls to subscribers’ homes except as provided by the franchise.

D. The grantee may charge a subscriber for a lost or stolen converter, not to exceed the grantee’s direct original wholesale cost; except that the loss or theft of a converter with the premium access feature will incur a monetary penalty as specified in the franchise ordinance to the responsible subscriber, unless a police report has been filed.

E. Converter deposits shall be fully refundable, with possible deductions for repairs due to damage other than that of normal wear, and for any unpaid service charges due.

F. The grantee shall be responsible for the protection of subscriber privacy, prohibiting the taping and/or monitoring of cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, except the grantee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signals. Where critical information requires private communication, electronic signal-scrambling techniques must be used.

G. The grantee and the city shall maintain constant vigilance with regard to possible abuses of the right of privacy or other human rights of any subscriber, programmer, or general cable communications system. The grantee shall not place in any private residence any equipment capable of two-way communications without the written consent of the residents, and will not utilize surveillance of any kind without the written consent of the subscriber.

H. No cable, line, wire, amplifier, converter, or other piece of equipment owned by the grantee shall be attached to any residence or other property by the grantee without first securing the written permission of the owner or responsible occupant of any property involved. If such permission is later revoked, whether by the original or a subsequent owner or responsible occupancy, the grantee shall remove forthwith all of its equipment and promptly restore the property to as near to its original condition as possible.

I. In the event that the grantee elects to rebuild, modify, or sell the system, or the city revokes or fails to renew the franchise, the grantee shall do everything in its power to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances during the lifetime of the franchise. In the event of a system purchase by the city, or the change of grantee, the current grantee shall cooperate with the city to operate the system for a temporary period, in maintaining continuity of service to all subscribers.

J. Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon the subscriber’s request, with the exception of underground installations if agreed upon by the subscriber at the time of subscription to the service.

K. The grantee shall not sell, or otherwise make available, lists of the names and addresses of its subscribers, or any list which identifies, by name, subscriber viewing habits, to any person, agency, or entity, for any purpose whatsoever.

L. No polls or other two-way responses of subscribers shall be conducted unless the program of which the poll is a part shall contain an explicit disclosure of the nature, purpose and prospective use of the results of the poll. No commercial or other use of information of subscriber viewing habits or patterns may be made and no release of such information shall be permitted without prior consent of the city council or pursuant to rules and regulations duly adopted by the city. [Ord. 2046, 2-26-81. Code 2001 § 111.47.]

5.30.280 Subscriber complaint service.

A. Subscriber complaint service will be provided in conjunction with the grantee’s corrective maintenance program. Location of the grantee’s office and service center to be subject to city council approval. The subscriber complaint service will be as specified in the franchise ordinance.

B. A conveniently located business office and service center will be maintained within the Newberg service area. This office shall be open during all usual business hours, with its telephone listed in directories of the telephone company servicing the city, and be so operated that complaints and requests for repairs or adjustments may be received by telephone at all times when any television signals are being broadcast. Corrective maintenance for institutional services will be in accord with contract terms between the grantee and the subscriber. [Ord. 2046, 2-26-81. Code 2001 § 111.48.]

5.30.290 Rates and charges.

Except when preempted by FCC regulations and state laws, the following procedures apply to the rates and charges associated with the providing of services under this chapter and any franchise issued hereunder:

A. The grantee shall charge its subscribers and users rates and charges approved by the city council, and no change in rates and charges may be made without the prior approval of the city council expressed by resolution.

B. Should the grantee desire to change its rates and charges, it shall file a petition with the city council at least 90 days prior to the proposed date of change. The petition shall detail the proposed changes and set forth the reason changes are desired. The petition shall include system historical financial data (balance sheets and detailed profit and loss statements) for the period since commencement of system operations or the previous five years, whichever is the lesser.

C. City council determination of proper rates and charges shall be based on factors considered important by the city council, which shall include, but not be limited to: the quality of signal delivered to subscribers, the quality of service provided to subscribers, channel capacity, number and quality of programming sources, and underlying economics of the system (system cash flow, grantee return on investment, and the like). In this regard, the city reserves the right to inspect all of the grantee’s property and records in adjudging the merits of a request for a change in rates and/or charges.

D. In connection with any proposed increase in any rate or charge, the city may direct an authorized representative to conduct a hearing on the matter. If so directed, the representative shall set the day, hour and place certain when and where any person having any interest therein may appear and be heard. This hearing should normally be conducted within 60 days from date of receipt of petition. The notice of a public hearing on the matter should be published at least 10 days before the date of the hearing in a newspaper of general circulation within the city.

E. At the time set for such hearing, or at any adjournment of the hearing, the representative shall hear the matter. Following the close of such hearing, the representative shall prepare and file with the city council a report of the hearing and the representative’s recommendations and the reasons for the recommendations. After receipt of the representative’s report, the city council shall determine whether to adopt the report or to hold a further hearing. If the city council elects to adopt the recommendations of the representative, it shall do so by resolution. If it elects to conduct a hearing, it shall adopt a resolution to do so, describing and stating the proposed change in rates or charges; and fixing and setting forth a day, hour and place certain when and where any person having any interest herein may appear before the city council. A notice shall be published of the resolution’s adoption at least once within 10 days of the passage of the resolution in a newspaper of general circulation within the city. The city manager also shall cause notice of intent of such resolution to be mailed to the grantee at least 10 days prior to the date specified for hearing. At the time set for such hearing, or at any adjournment of the hearing, the city council shall hear and decide the matter.

F. No rate established shall afford any undue preference or advantage among subscribers, but separate rates may be established for separate classes of subscribers. [Amended during 2011 recodification; Ord. 2046, 2-26-81. Code 2001 § 111.49.]

5.30.300 Local origination and access.

A. The grantee shall provide and maintain at least one local origination and access studio within the Newberg service area, location of the studio to be approved by the city council or its designated representative.

B. The grantee shall provide, install and maintain a local origination and access audio/video system at their local origination and access studio. The system shall contain a complement of compatible equipment as specified in the franchise ordinance all of which will be broadcast or top-level industrial quality.

C. The grantee shall make the portable audio-video equipment available for use by residents in accordance with a grantee-developed and city- approved studio and equipment operations/usage plan, provided the following:

1. The grantee may charge a deposit for the use and safe return of said equipment.

2. The user shall be responsible to the grantee for any loss of or damage to said equipment.

3. Said equipment shall be available to residents on a “check-out” basis, and the grantee shall be given reasonable notice by a resident who wishes to use said equipment.

4. Residents may not use the equipment for longer than a reasonable period of time, or more frequently than is reasonable.

5. The grantee may deny use of said equipment to any resident who, in the judgment of the grantee, is not competent in the care of said equipment.

6. The grantee shall hold harmless the city from any damages resulting from the use of local origination and access studio and portable equipment.

D. If the grantee provides a color production van for remote public access productions and locally originated programming, the van should be a fully equipped, multiple-camera, color production van with switchers, special effects, editing, and audio origination capability. It should have complete videotape recording (VTR) equipment for editing and later playback of programs, and can be linked for live origination to the system head-end or network distribution center by two-way cable throughout the grantee’s service area. Portable microwave equipment should be provided to link the production van to the system where cable interconnections are not available. The head-end or network distribution center should be equipped with an omni-directional microwave receive antenna to afford reception of the production van microwave signal from virtually any line-of-sight location within a 20-mile radius.

E. The grantee’s production capability will be supplemented by a minimum of two port-a-pak cameras and two three-quarter-inch portable video recorders.

F. The grantee shall provide community access channels for use by city residents, including a channel for government access, a channel for primary and secondary school access use, a channel for access use by colleges, a channel for community access on a first-come, first-served basis, and a channel for leased access. Until there is demand for full channel-time use, such may be combined on one or more channels. Additional access channels will be activated when any of the channels stipulated are in use during 80 percent of the weekdays (Monday through Friday) for 80 percent of the time during any consecutive three-hour period for six consecutive weeks.

G. Additional access production studio equipment, including portable cameras and video recorders, will be provided by the grantee if and when the level of community usage dictates the requirement for additional equipment as jointly determined by the grantee and the grantor.

H. The grantee will actively promote production assistance to facilitate use of these community access channels. The grantee shall maintain sufficient dedicated studio staff to fully support active local origination and access activities. The staff, upon reasonable notice, shall provide training and technical assistance in the use of the studio and portable equipment. This training and assistance shall, at a minimum, be available at the local origination and access studio and made available upon request at public schools.

I. The grantee shall maintain all studio equipment, including portable equipment, in a fully operational status on a continuous basis, and to technical standards requisite for quality performance. When any equipment is removed for maintenance it will be replaced by like-type equipment of equivalent performance standards by the grantee. [Ord. 2046, 2-26-81. Code 2001 § 111.50.]

5.30.310 Emergency alert – Audio-video override.

The grantee shall design and construct the cable communications system to provide for a restricted audio and video simultaneous override of all video channels during emergencies, with override to be placed under city control. Video override to include a character generator capability for delivery of emergency messages to the communicatively handicapped. The audio override shall include a squeal alert tone to precede the verbal and video messages. The design of the emergency alert system is to be submitted to the ordinance committee for approval prior to construction. [Ord. 2046, 2-26-81. Code 2001 § 111.51.]

5.30.320 Safety requirements.

A grantee shall, at all times:

A. Install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the city building code and electrical safety ordinances and in such manner that they will not interfere with any installations of the city.

B. Keep and maintain in a safe, suitable, substantial condition, and in good order and repair, all its structures, lines, equipment, and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the city wherever situated or located. [Ord. 2046, 2-26-81. Code 2001 § 111.52.]

Penalty: See NMC 1.05.200.

Article IV. Cable Communications Commission

5.30.330 Establishment and purpose.

A. Establishment. There is established a cable communications commission for the City of Newberg, Oregon, and for the cities of Dundee, Dayton and Lafayette, should they choose to participate.

B. Purpose.

1. The cable communications commission is established to promote, coordinate, and develop the use of all community access channels, local programming, local origination and related capabilities that are part of the cable communications system franchised in, and providing service to, the above enumerated cities.

2. The cable communications commission shall promote the use of cable communication systems, community and public access in the cities to meet the information and cultural needs of residents, businesses, nonprofit organizations and governmental bodies, and shall coordinate the use of community and public access channels.

3. The cable communications commission shall advise the city councils of the respective enumerated cities on matters pertaining to community and public access and other channels dedicated, or to be dedicated, by a cable communication systems operator for public access.

4. In carrying out its purposes, the cable communications commission shall make every reasonable effort to:

a. Seek and identify communities of interest and encourage them to use facilities and channels, over which the commission has jurisdiction, to express their interests, concerns, ideas and aspirations;

b. Provide free training in cable communications production for individuals and community groups;

c. Help individuals and community groups to develop and produce programs for cable casting;

d. Assure the availability of decentralized and accessible cable communications production facilities, pursuant to prescribed rules governing the use of such facilities and channels over which the commission has jurisdiction, to express diverging ideas and opinions on the broadest range of subjects; and

e. Provide programming different in format, style and content from the programming of other radio and television stations serving the cities of Newberg, Dundee, Dayton and Lafayette. [Ord. 2106, 12-6-82. Code 2001 § 111.60.]

5.30.340 Membership.

The cable communications commission shall consist of 11 members who are as follows:

A. Five members appointed by the City of Newberg;

B. One member appointed by the city of Dundee;

C. One member appointed by the city of Dayton;

D. One member appointed by the city of Lafayette;

E. Two ex officio, nonvoting members designated by the franchisee, TCI Cablevision of Oregon, Inc., formerly Liberty Communications, Inc.; and

F. One member designated by the mayor of the City of Newberg. [Ord. 2464, 2-18-97; Ord. 2109, 2-7-83; Ord. 2106, 12-6-82. Code 2001 § 111.61.]

5.30.350 Qualifications and appointment of members.

The following qualification and appointment procedure shall be used for the commission members, with consideration being given to representation by persons in the fields of the arts, education, public access, government, community information and special interest groups:

A. Five members shall be appointed by the mayor of the City of Newberg, with approval of the city council.

1. Four of the five members shall be residents of the City of Newberg.

2. None of these five members shall be officials or employees of the City of Newberg.

B. One member shall be:

1. Formally appointed by the mayor of the city of Dundee, using whatever procedure and qualifications are determined by the city of Dundee; and

2. A resident of the city of Dundee.

C. One member shall be:

1. Formally appointed by the mayor of the city of Dayton, using whatever procedure and qualifications are determined by the city of Dayton; and

2. A resident of the city of Dayton.

D. One member shall be:

1. Formally appointed by the mayor of the city of Lafayette, using whatever procedure and qualifications are determined by the city of Lafayette; and

2. A resident of the city of Lafayette.

E. Two ex officio, nonvoting members who:

1. Are designated by the franchisee, TCI Cablevision of Oregon, Inc.; and

2. May be officials or employees of the franchisee.

F. One member who:

1. Is designated by the mayor of the City of Newberg; and

2. May be an official or an employee of the City of Newberg. [Ord. 2464, 2-18-97; Ord. 2109, 2-7-83; Ord. 2106, 12-6-82. Code 2001 § 111.62.]

5.30.360 Term of office.

A. The members of the cable communications commission shall be appointed for a term of two years.

1. Members may serve no more than two consecutive two-year terms, plus a partial term if the commissioner is appointed to fill a vacancy in a partially expired term.

2. Terms shall run beginning on the first calendar day of the month following the effective date of this chapter.

B. In order to provide for a staggering of terms, two commissioners from Newberg and one commissioner from Dundee shall be initially appointed to only a one-year term, but may serve two additional two-year terms upon the completion of the initial one-year term.

C. The term of each member shall continue until such time as a successor is appointed. [Ord. 2464, 2-18-97; Ord. 2109, 2-7-83; Ord. 2106, 12-6-82. Code 2001 § 111.63.]

5.30.370 Vacancies and removal.

A. Appointments to fill vacancies shall be for the remainder of the unexpired terms.

B. A commissioner may be removed by the mayor of the appointing city for cause at any time, subject to the approval of the city council of the city from which the commissioner was appointed.

C. A commissioner who is absent from two consecutive meetings without an excuse may be removed for this cause and the position declared vacant. [Ord. 2106, 12-6-82. Code 2001 § 111.64.]

5.30.380 Officers.

At its initial organization meeting and the first meeting of each calendar year thereafter, the commission shall elect a chairman and vice-chairman to serve during the succeeding calendar year.

A. The chairman shall preside over all meetings of the commission.

B. In the absence of the chairman, the vice-chairman shall preside. [Ord. 2106, 12-6-82. Code 2001 § 111.65.]

5.30.390 Staff services.

A. Staff Contact.

1. Subject to the approval of the commission, the city manager of the City of Newberg shall appoint a member of city staff to act as staff contact from the city.

2. The city shall provide consultation services as may be appropriate.

B. Clerical Support.

1. The franchisee, TCI Cablevision of Oregon, Inc., shall provide clerical support.

2. A secretary shall be appointed to keep a record of commission proceedings. [Ord. 2464, 2-18-97; Ord. 2106, 12-6-82. Code 2001 § 111.66.]

5.30.400 Meetings.

A. A majority of the voting members of the cable communications commission shall constitute a quorum.

B. A vote of the majority of the voting members of the commission present and voting shall be required to decide any matter before the commission.

C. The cable communications commission shall meet at least once every two months.

1. Meetings shall be open to the public, except as may be authorized by state law.

2. Meetings other than at regularly scheduled times may be announced at a prior meeting, and thereby be made a part of the meeting records.

3. At the request of two or more voting members or upon motion of the chairman alone, a previously unannounced special meeting may be called for a time not earlier than 24 hours after notice has been given to the remaining members.

4. Notice shall be given as required by state law.

5. An emergency meeting may be called in accordance with the requirements of state law. [Ord. 2106, 12-6-82. Code 2001 § 111.67.]

Cross-reference: See ORS 192.610 – 192.690 pertaining to open meetings, notice, and emergency meetings.

5.30.410 Powers and duties.

The commission shall have the powers and duties that are now, or may hereafter be, assigned to it by the Charter, ordinances or resolutions of the city, and general laws of the state. [Ord. 2106, 12-6-82. Code 2001 § 111.68.]

5.30.420 Rules and regulations.

The commission may make and alter rules and regulations for its government and procedure consistent with the Charter and ordinances of the city and the laws of the state. [Ord. 2106, 12-6-82. Code 2001 § 111.69.]

5.30.430 Funds, budget, and annual report.

A. Disbursements.

1. The funds for the support of the commission shall be paid to the city, and disbursed to the commission, as part of the city’s budget.

2. Disbursements of funds shall be approved by the cable communications commission.

B. Annual Budget and Report.

1. The commission shall present an annual budget for inclusion in the city budget.

2. The commission shall present an annual report of its activities with its budget proposal each year. [Ord. 2106, 12-6-82. Code 2001 § 111.70.]