Chapter 5.12 CABLE COMMUNICATIONS

For the purposes of this chapter, the following words, terms, phrases and their derivations have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the singular number include the plural number and words in the plural number include the singular number.

1. “Applicant” means any person or entity that applies for an initial franchise.

2. “Cable Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as any of them may be amended.

3. “Cable operator” means any person or group of persons, including a franchisee, who provide(s) cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a cable system.

4. “Cable service” means the one-way transmission to customers of video programming or other programming service, and customer interaction, if any, which is required for the selection or use of such video programming or other programming service.

5. “Cable system” means any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple customers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves customers without using any public right-of-way; (c) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a cable system (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to customers, unless the extent of such use is solely to provide interactive on-demand services; (d) an open video system that complies with federal statutes and regulations; or (e) any facilities of any electric utility used solely for operating its electric utility systems.

6. “City” means the city of Clyde Hill, a municipal corporation of the state of Washington, and all of the area within its boundaries, as such may change from time to time.

7. “City council” means the Clyde Hill city council, or its successor, the governing body of the city.

8. “Customer” means any person who or which elects to subscribe to, for any purpose, cable service provided by a franchisee by means of or in connection with the cable system and whose premises are physically wired and lawfully activated to receive cable service from franchisee’s cable system.

9. “FCC” means the Federal Communications Commission.

10. “Franchise” means an agreement that authorizes a person or entity to construct, operate, maintain or reconstruct a cable system. Upon the written acceptance by a franchisee, the agreement constitutes a contract between the city and franchisee.

11. “Franchise area” means the area within the jurisdictional boundaries of the city to be served by a franchisee as specified in the franchise.

12. “Franchisee” means the person, firm, corporation or entity to whom or which a franchise, as hereinabove defined, is granted by the city council under this chapter and the lawful successor, transferee or assignee of said person, firm, corporation or entity.

13. “Right-of-way” or “rights-of-way” means all of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and are located within the city: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property and areas. (Ord. 878 Exh. A § 1, 2006)

5.12.020 Franchise grant.

It is unlawful to engage in or commence construction, operation or maintenance of a cable system in the city without a franchise issued under this chapter. The city council may, by ordinance, issue a nonexclusive franchise to construct, operate and maintain a cable system within all or any portion of the city to any person or entity, whether operating under an existing franchise or not, who applies for authority to furnish cable service which complies with the terms and conditions of this chapter; and provided, that such person or entity also agrees to comply with all of the provisions of the franchise. However, this shall not be deemed to require the grant of a franchise to any particular person or entity. The city council may restrict the number of franchises should it determine such a restriction would be in the public interest. (Ord. 878 Exh. A § 2, 2006)

5.12.030 Franchise purposes.

A franchise granted by the city under the provisions of this chapter shall:

A. Permit the franchisee to engage in the business of operating a cable system and providing cable service within the city;

B. Permit the franchisee to erect, install, construct, repair, reconstruct, replace and retain wires, cables, related electronic equipment, conduits and other property in connection with the operation of the cable system in, on, over, under, upon, along and across rights-of-way within the city; and

C. Set forth the obligations of the franchisee under the franchise. (Ord. 878 Exh. A § 3, 2006)

5.12.040 Nonexclusive franchise.

Any franchise granted pursuant to this chapter shall be nonexclusive and not preclude the city from granting other or future franchises or permits. (Ord. 878 Exh. A § 4, 2006)

5.12.050 Application.

A. An applicant for an initial franchise shall submit to the city a written application on a form provided by the city, at the time and place specified by the city for accepting applications, and accompanied by the designated application fee. An application fee in the amount of $20,000 shall accompany the application to cover costs associated with processing the application, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, the costs of consultants, notice and publication requirements, and document preparation expenses. In the event such costs exceed the application fee, the applicant shall pay the difference to the city within 30 days following receipt of an itemized statement of such costs. Conversely, if such costs are less than the application fee, the city shall refund the difference to the applicant.

B. An application for an initial franchise for a cable system shall contain, at a minimum:

1. A statement as to the proposed franchise and information relating to the characteristics and location of the proposed cable system;

2. A resume of prior history of the applicant, including the expertise of the applicant in the cable system field;

3. Information demonstrating the applicant’s legal, technical and financial ability to construct and operate the proposed cable system;

4. A list of the partners, general and limited, of the applicant, if a partnership, members, if a limited liability company, or the percentage of stock owned or controlled by each stockholder having a five percent or greater interest, if a corporation;

5. A list of officers, directors and key employees of the applicant, together with a description of the background and experience of all such persons;

6. The names and addresses of any parent entity or subsidiary of the applicant or any other business entity owning or controlling the applicant in whole or in part, or owned or controlled in whole or in part by the applicant;

7. A proposed construction and service schedule;

8. Any other reasonable information that the city may request.

The city shall be allowed the opportunity to ask relevant follow-up questions and obtain further information from whatever source. A refusal by an applicant to cooperate or provide requested information is sufficient grounds for the city to deny an application.

C. Upon receipt of an application for an initial franchise and after obtaining any additional information the city in its sole discretion deems appropriate from any source, a hearing shall be scheduled to allow public comment. At the hearing, the city council shall receive public comment regarding the following:

1. Whether the public will benefit from granting a franchise to the applicant;

2. Whether the applicant appears to have adequate legal, financial and technical qualifications and capabilities to build, operate and maintain a cable system in the city;

3. Whether the applicant has any conflicting interests, either financial or commercial, that will be contrary to the interests of the city;

4. Whether the applicant will comply with all of the terms and conditions placed upon a franchisee by the franchise, this chapter and other applicable local laws and regulations;

5. Whether the applicant will comply with all relevant federal and state laws and regulations pertaining to the construction, operation and maintenance of the cable system.

D. Within 60 days after the close of the hearing, the city council shall decide whether to grant a franchise and on what conditions. The city council’s decision shall be based upon the application, any additional information submitted by the applicant or obtained by the city from any source and public comments. The city council may grant one or more franchises or may decline to grant any franchise. (Ord. 878 Exh. A § 5, 2006)

5.12.060 Duration.

The term of any franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall be specified in the franchise. The effective date of any franchise shall be as specified in the franchise. (Ord. 878 Exh. A § 6, 2006)

5.12.070 Franchise territory.

The franchise territory shall include all areas within the city or a lesser area as specified in the franchise. (Ord. 878 Exh. A § 7, 2006)

5.12.080 Police powers.

In accepting any franchise, the franchisee acknowledges that its rights thereunder are subject to the police powers of the city to adopt and enforce ordinances necessary for the health, safety and welfare of the public, and it agrees to comply with all applicable laws enacted by the city pursuant to such power. (Ord. 878 Exh. A § 8, 2006)

5.12.090 Use of rights-of-way.

For the purposes of operating and maintaining a cable system in the city, a franchisee may place and maintain within the rights-of-way such property and equipment as are necessary and appurtenant to the operation of the cable system. Prior to construction of the cable system in the rights-of-way, the franchisee shall procure all necessary permits, pay all applicable fees in connection therewith and comply with all applicable laws, regulations, resolutions and ordinances, including, but not limited to, land use and zoning requirements. (Ord. 878 Exh. A § 9, 2006)

5.12.100 Pole or conduit agreements.

No franchise shall relieve franchisee of any of its obligations involved in obtaining pole or conduit agreements from any department of the city, any utility company or from others maintaining facilities in the rights-of-way. (Ord. 878 Exh. A § 10, 2006)

5.12.110 Franchise fees.

The franchisee shall pay the city franchise fees in accordance with the terms of the franchise. (Ord. 878 Exh. A § 11, 2006)

5.12.120 Taxes.

Nothing in this chapter shall limit the franchisee’s obligation to pay applicable local, state and federal taxes. (Ord. 878 Exh. A § 12, 2006)

5.12.130 Other authorizations.

Franchisee shall comply with and obtain, at its own expense, all permits, licenses and other authorizations required by federal, state and local laws, rules, regulations and applicable resolutions and ordinances which are now existing or hereafter lawfully adopted. (Ord. 878 Exh. A § 13, 2006)

5.12.140 Rules and regulations of the city.

In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to it by the Cable Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is reserved by the city to promulgate such additional rules and regulations as it may find necessary in the exercise of its lawful powers and in furtherance of the terms and conditions of a franchise and this chapter, and as permitted by applicable state and federal law. (Ord. 878 Exh. A § 14, 2006)

5.12.150 Delegation of powers.

Any right or power of the city may be delegated by the city to any officer, employee, department or board of the city, or to such other person or entity as the city may designate to act on its behalf. (Ord. 878 Exh. A § 15, 2006)

5.12.160 Coverage.

Franchisee shall design, construct and maintain its cable system to pass every residential dwelling unit in the franchise area, subject to any density requirements contained within the franchise. (Ord. 878 Exh. A § 16, 2006)

5.12.170 Technical standards.

Franchisee shall construct, install, operate and maintain its cable system in a manner consistent with all applicable federal, state and local laws and regulations, FCC technical standards and any other applicable standards set forth in the franchise. (Ord. 878 Exh. A § 17, 2006)

5.12.180 Construction standards.

A. All facilities constructed or operated under this chapter shall be installed and maintained at such places in or upon such rights-of-way and public places as shall not interfere with the free passage of traffic and the free use of adjoining property, and shall conform to federal standards, state requirements, and city regulations.

B. The franchisee shall be subject to any and all requirements established by the city with regard to the placement and screening of franchisee’s facilities and equipment located in the rights-of-way and on other public property. Such requirements may include, but are not limited to, the use of landscaping to screen pedestals and cabinets and a requirement that construction be flush with the natural grade of the surrounding area.

C. The franchisee shall comply with any applicable ordinances, resolutions and regulations of the city regarding geographic information systems mapping for users of the rights-of-way; provided, that all similarly situated users of the rights-of-way must also accordingly comply. (Ord. 878 Exh. A § 18, 2006)

5.12.190 Street cut or repair.

The franchisee shall guarantee the durability and structural integrity of any street cut or repair made by it or its agents which is necessary for the construction, installation, operation, repair or maintenance of franchisee’s facilities for the life of the street; provided, that no action by an unrelated third party materially affects the integrity of franchisee’s street cut or repair. Franchisee shall repair or replace, at no expense to the city, any failed street cut or repair which was completed by franchisee or franchisee’s agent(s), as determined by the city. (Ord. 878 Exh. A § 19, 2006)

5.12.200 Safety requirements.

The franchisee shall, at all times, employ professional care and install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. In furtherance thereof, the franchisee must comply with the city’s traffic control requirements, including, for example, but without limitation, the use of signal devices, warning signs and flaggers when appropriate. All of franchisee’s structures, cables, lines, equipment and connections in, over, under and upon the rights-of-way and public ways or other places in the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe condition. (Ord. 878 Exh. A § 20, 2006)

5.12.210 Regulation of rates and charges.

The city may regulate franchisee’s rates and charges to the full extent permitted by law. (Ord. 878 Exh. A § 21, 2006)

5.12.220 Privacy.

The franchisee will be bound by all of the provisions of applicable federal, state and local privacy laws. (Ord. 878 Exh. A § 22, 2006)

5.12.230 Discriminatory practices prohibited.

A. The franchisee shall not deny cable service or otherwise discriminate against customers or others on the basis of race, color, religion, national origin, sex, age, disability or other protected classes.

B. Access to cable service shall not be denied to any group of potential residential customers because of the income of the residents of the local area in which such group resides. (Ord. 878 Exh. A § 23, 2006)

5.12.240 Equal employment opportunity.

The franchisee shall strictly adhere to and comply with the equal employment opportunity requirements of federal, state and local laws. (Ord. 878 Exh. A § 24, 2006)

5.12.250 Reimbursement.

To the extent allowed by applicable law, the city may require a franchisee to reimburse the city for the city’s reasonable processing and review expenses, such costs not to exceed $20,000, in connection with a sale or transfer of a franchise or a change in control of a franchise or franchisee, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee or controlling party, costs of consultants, notice and publication costs, and document preparation expenses. In connection with the foregoing, the city will send franchisee an itemized description of all such charges, and franchisee shall pay such amount within 30 days after the receipt of such description. (Ord. 878 Exh. A § 25, 2006)

5.12.260 Franchise renewal.

Franchise renewals shall be conducted in accordance with applicable law. The city and franchisee, by mutual consent, may enter into renewal negotiations at any time during the term of a franchise. (Ord. 878 Exh. A § 26, 2006)

5.12.270 Franchise revocation.

Any franchise granted by the city may be revoked during the period of such franchise, as provided in the franchise, subject to the procedural requirements provided for therein. A failure by the franchisee to comply with any of the material provisions of this chapter shall be deemed a material violation of a franchise. (Ord. 878 Exh. A § 27, 2006)

5.12.280 Miscellaneous provisions.

A. This chapter shall be construed in a manner consistent with all applicable federal, state and local laws, and shall apply to any franchise hereafter accepted by a franchisee.

B. The captions throughout this chapter are intended to facilitate the reading hereof. Such captions shall not affect the meaning or interpretation of any part of this chapter.

C. A franchisee shall not be relieved of its obligations to comply with any or all of the provisions of this chapter by reason of any failure of the city to demand prompt compliance.

D. The provisions of this chapter shall apply to all cable operators and cable systems to the greatest extent permissible under applicable law. (Ord. 878 Exh. A § 28, 2006)