Chapter 5.20 CABLE COMMUNICATION SYSTEM FRANCHISE

A. “Access channels” means free composite channels to be used for educational purposes and by government and other public agencies and/or their representatives (commonly referred to as “PEG” channels).

B. “Act” means the Cable Communications Policy Act of 1984 and any subsequent amendments.

C. “Addressability” means the ability of a system allowing the franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming.

D. “Affiliate” means an entity which owns or controls, is owned or controlled by, or is under common ownership with franchisee.

E. “Applicant” means any person or entity that applies for a franchise.

F. “Basic services” means those broadcast and nonbroadcast services provided by the cable franchisee at the lowest monthly charge as defined by the Act or rules now or subsequently adopted by the FCC.

G. “Cable service” means (1) the one-way transmission to subscriber of video programming or other programming service; and (2) in case of two-way transmission capability, subscriber interaction, if any, which is required for the selection by the subscriber of such video programming or other programming service.

H. “CATV” means a community antenna television system as hereinafter defined.

I. “Channel” means a single path or section of the spectrum which carries a television signal.

J. Repealed by Ord. 95-10.

K. “Community antenna television system,” “cable television system,” or “system,” means a system of antennas, cables, wires, lines, towers, transmission lines, equipment or facilities, designed and constructed for the purpose of producing, receiving, controlling, transmitting, amplifying, scrambling and distributing audio, video and other forms of electronic or electrical signals, which provides cable service to multiple subscribers located in whole or in part in the town. Such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Act, except that such facility shall be considered a cable system (other than for purposes of Section 621 (c) of the Act) to the extent such facility is used in the transmission of video programming directly to subscribers; or (4) any facilities of any electric utility used solely for operating its electric utility systems.

L. “Converter” means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and with an appropriate channel selector which also permits a subscriber to view all signals delivered at designated converter dial locations.

M. “Council” means the present governing body of the town or any future board constituting the legislative body of the town.

N. “FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

O. “Franchise” means the nonexclusive right or authority to construct, operate and maintain a cable television system by use of town owned rights-of-way, easements or other publicly owned properties.

P. “Franchisee” means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in town ordinance.

Q. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

R. “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 his/her 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.

S. “Office” means the person or entity designated by the town as being responsible for the administration of the franchise for the town.

T. “Operator” shall have the same meaning as “franchisee.”

U. “Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of a CATV business in the town under the authority of a franchise granted pursuant to this chapter.

V. “Public way” means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the town in the service area which shall entitle the town and the franchisee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the town within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the town and the franchisee to the use thereof for the purpose of installing or transmitting franchisee’s cable service or other service over poles, wires, cables, conductor, ducts, conduits, vaults, manholes, amplifiers, compliances, attachments and other property as may be ordinarily necessary and pertinent to the cable system.

W. “Receipts” means monthly fees received directly from subscribers by the grantee as a result of the operation of the cable system through the use of the public streets and rights-of-way for which a franchise is required under this chapter. For purposes of calculating franchise fees hereunder, gross receipts shall not include, or shall be reduced by the following:

1. Any taxes on services furnished by the franchisee imposed directly upon the franchisee or any subscriber or used by the state or any other governmental entity, including any franchise fee, sales, tax, or utility users tax;

2. Revenue derived from noncable related services;

3. The value of in-kind services or revenue from the sale, rental or servicing of merchandise not related to the cable system in the town or with respect to which a franchise for the operation of a cable system is not required under this chapter;

4. Reimbursement from developers, individuals, suppliers or utilities;

5. Product cost;

6. Installation revenues;

7. Copyright fees paid to the Copyright Royalty Tribunal;

8. Reimbursement for damaged equipment or plant;

9. Advertising revenues;

10. Revenues from leased access channel.

X. “Subscriber” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission.

Y. “Town” means the town of Eatonville, a municipal corporation of the state of Washington. (Ord. 95-10 § 1, 1995; Ord. 90-5 § 1, 1990).

5.20.020 Terms of franchise.

A. Authority to Grant Franchises or Licenses for Cable Television.

1. It is unlawful to engage in or commence construction, operation or maintenance of a cable communications system without a franchise issued under this chapter. The council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable communications system which complies with the terms and conditions of this chapter.

2. Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the town from granting other or further franchises or permits or preclude the town from using any roads, rights-of-way, streets or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the town to make all necessary changes, as the town in its sole discretion shall decide, including the dedication, establishment, maintenance and improvements of all new rights-of-way and thoroughfares and other public properties of any type. In the event the town grants another cable franchise, the new franchise shall be granted on the same terms as the existing franchise.

B. Incorporation by Reference.

1. The provisions of this chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder.

2. The provisions of any proposal submitted and accepted by the town shall be incorporated by reference in the applicable franchise or license. However, in the event of any conflict between the proposal and this chapter, this chapter will be the prevailing document.

C. Nature and Extent of the Grant. Any franchise granted hereunder by the town shall authorize the franchisee, subject to the provisions herein contained:

1. To engage in the business of operating and providing cable service and the distribution and sale of such service to subscribers within the town;

2. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, 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 franchisee franchised or permitted to do business in the town; and

3. No privilege or exemption shall be granted or conferred upon franchisee by any franchise except those specifically prescribed therein, any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

D. Term of Franchise. The franchise and rights and privileges granted shall remain in force and effect for a period of 15 years from the effective date of the acceptance of such franchise. (Ord. 90-5 § 2, 1990).

5.20.030 Hearing.

Prior to the granting of a franchise, the town council shall conduct a public hearing to determine the following:

A. That the public will be benefited by the granting of a franchise to the applicant;

B. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

C. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the town;

D. That the applicant will comply with all terms and conditions placed upon the franchisee by this chapter; and

E. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise. (Ord. 90-5 § 3, 1990).

5.20.040 Acceptance.

A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective.

B. Within 30 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the franchisee shall file with the town clerk its written acceptance, in a form satisfactory to the town attorney, of the franchise, together with bond and insurance policies required by any ordinance. (Ord. 90-5 § 4, 1990).

5.20.050 Police powers.

In accepting any franchise, the franchisee acknowledges that its rights hereunder are subject to the police power of the town to adopt and enforce general ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the town pursuant to such power provided such laws do not change the material terms of the ordinances. (Ord. 90-5 § 5, 1990).

5.20.060 Rules and regulations by the town.

A. In addition to the inherent powers of the town to regulate and control any franchise it issues, the authority granted to it by the Act, and those powers expressly reserved by the town, or agreed to and provided for in a franchise, the right and power is reserved by the town to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers provided they are consistent with the terms and conditions of this chapter and provided further they do not increase the material burdens nor diminish the rights of the franchisee.

B. The town council reserves the right to delegate its authority for franchise administration to a designated agent. (Ord. 90-5 § 6, 1990).

5.20.070 Technical standards.

A. Franchisee shall comply with FCC rules, Part 76, Subpart K, Sections 76.601 through 76.610 and as amended, at the minimum, the following:

1. Applicable town, county, state and national federal codes and ordinances;

2. Applicable utility joint attachment practices;

3. The National Electrical Safety Code; ANSI C2;

4. Local utility code requirements;

5. Local rights-of-way procedures; and

6. NCTA manual 741 Signal Leakage and Interference Control.

B. Preventative Maintenance. A comprehensive routine preventive maintenance program shall be developed, effected and maintained for each system by the respective franchisee to ensure continued top quality cable communications operating standards in conformance with FCC Part 76. (Ord. 90-5 § 7, 1990).

5.20.080 Coverage.

Within 12 months after the date of the franchise, franchisee shall have complete the installation of cable in all areas of the town subject to the conditions of EMC 5.20.200. All annexed and newly developed areas shall be provided cable service, if such areas are contiguous to the town limits, within six months from the time of obtaining necessary permits subject to the provisions of EMC 5.20.190 and 5.20.200. (Ord. 90-5 § 8, 1990).

5.20.085 Access channels – Adopted.

Franchisee shall make available one standard video channel on the system for public, educational and/or governmental (PEG) access purposes which is shared with other local governmental agencies. The PEG access channel shall be provided as a part of basic service. (Ord. 95-10 § 2, 1995).

5.20.090 Public buildings.

Franchisee shall provide a basic service outlet, without charge for installation, basic monthly service, outlet and converter at such public buildings within 150 feet of the existing trunk line in the franchise area and as specified in Appendix A (adopted by the ordinance codified in this chapter and on file in the office of the town clerk) and that may be constructed during the period of the franchise.

However, in such cases, franchisee and the administrator of public buildings may share such additional costs involved in excess of normal installation costs in excess of the first 150 feet on a mutually agreed upon case-by-case basis. (Ord. 90-5 § 9, 1990).

5.20.100 Parental control devices.

Franchisee will make available parental control or lock-out devices (audio and visual) upon request by subscriber at a reasonable charge. These devices should provide the greatest degree of parental discretion and control to prevent unauthorized viewing of any premium channel or channels and, where technically and practically feasible, nonpremium channels as well. (Ord. 95-10 § 3, 1995; Ord. 90-5 § 10, 1990).

5.20.110 Other interactive services.

Franchisee shall construct its system to include the ability of providing interactive services to residential and governmental subscribers, to the extent economically and financially feasible to do so. (Ord. 95-10 § 4, 1995; Ord. 90-5 § 11, 1990).

5.20.120 Emergency power.

Franchisee shall provide a standby power system to automatically activate equipment at the headends in the event of a primary electrical failure. Such system shall be operational within six months from the effective date of the franchise. (Ord. 90-5 § 12, 1990).

5.20.130 Leased access.

The franchisee will comply with Section 612 of the Act to make available a cable channel for local commercial use as soon as the various criteria of that section are reached. (Ord. 90-5 § 13, 1990).

5.20.140 Emergency override.

The franchisee will provide emergency override capability from its headend via telephone line from the town within 24 months, provided no objections are received from other communities served by the same headend. The town shall file with the franchisee a list of authorized officials who will be granted permission to request the franchisee to transmit such information. Such a request will be made solely in case of extreme local emergency as a form of disaster control only when all other means of notification are inadequate in view of the urgency of a communications crisis. The town shall accept fully responsibility for any legal consequences that may occur through its use of such system. (Ord. 90-5 § 14, 1990).

5.20.150 Construction standards.

All facilities constructed under this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of the state, and town regulations pertaining to such construction.

Whenever the town imposes as a condition to its approval of a tentative map or a parcel map a requirement that necessitates replacing, undergrounding or permanently or temporarily relocating existing facilities of the cable system, the builder, developer or subdivider shall reimburse the franchisee for all costs of the replacement, undergrounding or relocation. (Ord. 90-5 § 15, 1990).

5.20.160 Construction notification.

The town may establish reasonable minimum requirements for advance notification to residents adjacent to proposed construction areas. The franchisee shall deliver to the town within 30 days of the effective date of the franchise a street obstruction performance bond of $5,000.

The franchisee shall maintain a current pole attachment agreement with the town for the period of time that the town retains ownership. In the event pole ownership should change, pole attachment agreement will be maintained in force and transferred to the new owner. (Ord. 90-5 § 16, 1990).

5.20.170 Undergrounding.

In those areas and portions of the town where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the franchises at its expense shall likewise construct, operate and maintain all of its transmission and distribution facilities in the same area underground. Amplifiers and associated equipment in franchisee’s transmission and distribution lines may be in appropriate housing upon the surface of the ground as approved by the town. (Ord. 90-5 § 17, 1990).

5.20.180 Safety requirements.

A. The franchisee shall, at all times, employ professional care and shall install and 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.

B. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys and public ways or places of the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

C. The town reserves the general right to see that the system of the franchisee is constructed and maintained in a safe condition. If an unsafe condition is found to exist by the town, it may order the franchisee to make necessary repairs within 30 days from the receipt of the town’s notification thereof. If franchisee fails to correct the unsafe condition by making necessary repairs, the town may make the repairs itself or have them made, and collect all reasonable costs thereof from the franchisee. (Ord. 95-10 § 5, 1995; Ord. 90-5 § 18, 1990).

5.20.190 Annexed and newly developed areas.

The developer or property owner shall, at its cost, provide the franchisee with sufficient space for conduit, vaults, pedestals and laterals. The franchisee shall provide specifications for such construction as required.

The franchisee shall be given written notification 30 days in advance of when such trenches will be open. If the franchisee fails to place its equipment in such open construction after five working days, the cost of new trenching shall be borne by the franchisee. When feasible the franchisee will make a best effort to shorten the notification timeline.

The franchisee’s amplifiers and essential connection thereto may be placed in appropriate housing aboveground as approved by the town. In any case, the town shall not be responsible for any costs in placing such equipment underground. (Ord. 90-5 § 19, 1990).

5.20.200 Line extension.

Franchisee agrees to provide cable communications service to all areas within the town, subject to the condition that there are at least 50 permanent, primary residential dwelling units per street mile and one such unit within 150 feet of franchisee’s distribution system as measured from the existing system.

In the event request is made for service by a resident living in an area not meeting such criteria, the franchisee may make such installation available to the requesting subscriber provided a signed work agreement is on file, on a time and material cost basis plus 15 percent maximum. (Ord. 95-10 § 6, 1995; Ord. 90-5 § 20, 1990).

5.20.210 Building moving.

Whenever any person shall have obtained permission from the town to use any street for the purpose of moving any building, the franchisee, upon seven days’ written notice from the town or its agent, shall raise or remove, at the expense of that person desiring to move the building, any of its or their wires which may obstruct the removal of such building provided that the moving of such building shall be done in accordance with the regulations and general ordinances of the town. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference with the lines of franchisee and other franchise holders. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly by such temporary arrangement of the lines and poles of the franchisee. (Ord. 90-5 § 21, 1990).

5.20.220 Rates and rate change.

Within 60 days after the grant of any franchise hereunder, franchisee will file with the town a complete schedule of all rates to be charged to all subscribers.

Prior to implementation of any change in rates or charges for any service or equipment provided by franchisee, franchisee shall provide the town and all subscribers a minimum of 30 days’ prior written notice of such change. However, this requirement shall not pertain to pay-per-view and other like services. (Ord. 95-10 § 7, 1995; Ord. 90-5 § 22, 1990).

5.20.230 Discounts.

Franchisee shall offer a discount of 25 percent from the normal rate to subscribers for basic service and 50 percent from installation to those persons who are aged 62 or older, or are at least 70 percent disabled, provided that such person(s) are the legal owner or lessee/tenant of their residence and that person(s) are identifiable by the Washington State Department of Social and Health Services as financially needy. (Ord. 95-10 § 8, 1995; Ord. 90-5 § 23, 1990).

5.20.240 Franchise fee.

Franchisee shall pay to the town a sum equal to five percent of gross receipts as defined herein. Such payment will be made on a quarterly basis. (Ord. 90-5 § 24, 1990).

5.20.250 Record inspection.

Subject to statutory and constitutional limits and reasonable advance notice, the town reserves the right to inspect the following records of the franchisee at any time during normal business hours provided the town shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the franchisee: (1) service complaint logs; (2) performance test results; (3) records required to be kept by franchisee related to cable service pursuant to the rules and regulations of the FCC and other regulatory agencies; and (4) such financial records of the franchisee as are necessary to verify the accuracy of franchise fees paid to the town. Such data, however, is understood to be limited to such information that pertains solely to the operation and maintenance of the cable television system within the town. (Ord. 95-10 § 9, 1995; Ord. 90-5 § 25, 1990).

5.20.260 Reports.

A. Quarterly Reports. Beginning with the third quarter of 1996, within 25 calendar days after the end of the quarter, franchisee shall submit to the town a completed form reporting revenues from cable services and subscriber levels by categories for the previous quarter. These reports shall be in a form agreed to by the town and franchisee. The town and franchisee may from time to time agree to make such reasonable amendments to the forms as are required to ensure that all gross revenues are reported clearly and accurately. To the extent included as gross revenues, at a minimum the quarterly reports shall break out gross revenues into the following categories: (1) basic cable services; (2) pay-per-view revenue; (3) premium channel fees; (4) installation payments; (5) service call payments; and (6) equipment rental fees.

B. Annual Report. No later than 60 days following the end of franchisee’s fiscal year each year, franchisee shall present a written report to the town which shall include:

1. A summary of the previous year’s activities for the franchise area, including, but not limited to, the total number of subscribers for each category of service, the number of homes passed, miles of overhead and underground cable plant, other system facilities and equipment constructed, any services added or dropped, and any technological changes occurring in the cable system;

2. A summary showing by month the number of service calls received by type and month, the percentage of service calls compared to the subscriber base by type of complaint, the number of outages by month, the number of planned outages by month, and the approximate total duration of these outages;

3. A copy of the most recent annual report, if any, to the FCC;

4. Maps showing the location of underground facilities. In addition, franchisee and town shall consult from time to time to discuss franchisee’s construction plans. (Ord. 95-10 § 10, 1995; Ord. 90-5 § 26, 1990).

5.20.270 Periodic meetings.

Should any dispute arise between the franchisee and the town concerning the operation of the cable system or the franchisee’s performance under this chapter and the specific franchise ordinance, the franchisee and representatives from the town shall meet within 10 days of receiving a request from the other to review the performance of the franchisee and/or attempt to resolve the dispute. If the dispute is unable to be resolved, the town and the franchisee shall submit the matter to binding arbitration conducted according to the rules of the American Arbitration Association for commercial arbitration or such other rules as the town and franchisee may agree. All parties shall use their best efforts to conduct the arbitration as quickly as possible. (Ord. 95-10 § 9,* 1995; Ord. 90-5 § 27, 1990).

*Editor’s note: This is a second Section 9 in Ord. 95-10.

5.20.280 Performance tests.

A. If the town determines that reasonable evidence exists of inadequate cable system performance pursuant to EMC 5.20.070, it may require franchisee to perform tests and analyses directed toward such suspected inadequacies at the franchisee’s own expense. Franchisee shall fully cooperate with the town in performing such testing and shall prepare results, and the report prepared by franchisee shall include at least:

1. A description of the problem in CATV system performance which precipitated the special tests;

2. What CATV system component was tested;

3. The equipment used and procedures employed in testing;

4. The method, if any, by which such CATV system performance problem was resolved;

5. Radiation limits tests, such as those heretofore required by the FCC; and

6. Any other information pertinent to said tests and analyses which may be required by the town, or determined when the test is performed.

B. If the results of testing indicate that the franchisee was operating within the established parameters as described in EMC 5.20.100; then the town shall be responsible for the costs of such tests. If the technical analysis shows that the franchisee is in violation of such parameters, the franchisee shall reimburse the town for such actual costs of testing. If such violation is shown, franchisee shall correct all violations within 60 days after written notice from the town. (Ord. 90-5 § 28, 1990).

5.20.290 Customer service.

A. Franchisee shall maintain an office which shall be open during normal business hours, shall have a publicly listed telephone number listed in the town telephone directory which is toll free to subscribers of the town cable system, and shall be operated to receive customer inquiries on a 24-hour-a-day, seven-day-a-week basis. A record of all complaints requiring service calls shall be maintained for a one-year period. Franchisee’s office shall be staffed a minimum of regular business office hours from Monday through Friday, except holidays for a prompt response to any complaint concerning billing, employee courtesy, programming, safety or company policy.

B. Franchisee shall render repair service to restore the quality of the signal at no less than the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A written or computerized log shall be maintained for a period of one year for all service interruptions which can be inspected upon notice.

C. Franchisee will maintain a sufficient repair force to respond to individual customer complaints or request for repair service within 48 hours after receipt of the complaint or request except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days, to the extent reasonable. Upon a request by customer, no charge for the period of the outage shall be made to the customer if the customer was without service for a period exceeding 24 hours, unless the outage was due to acts of God or events beyond the reasonable control of the franchisee.

D. Franchisee shall, upon request, provide to customers the title, address and telephone number of the town official or his/her designee, to whom system subscribers may direct their concerns.

E. Franchisee shall at all times meet or exceed industry standards for maintenance of the cable system. Should a cable system outage occur affecting more than five customers, a restoration procedure shall be followed which shall be handled in conjunction with restoration of other utility services. The priority for restoration of services is power, telephone and then cable services. (Ord. 95-10 § 10,* 1995; Ord. 90-5 § 29, 1990).

*Editor’s note: This is a second Section 10 in Ord. 95-10.

5.20.300 Subscriber’s right of privacy.

The franchisee shall comply with all of the provisions of Section 631 of the Act. (Ord. 90-5 § 30, 1990).

5.20.310 Programming.

For informational purposes only, the franchisee shall file, upon granting of the franchise, a complete listing of its channel line-up including a breakdown of its basic and tier services. Such listing shall become the initial programming and cost schedule to be considered as the basis from which any changes may be contemplated in the future. This information, however, does not accord the town any greater rights of regulation than those granted in the Act. (Ord. 90-5 § 31, 1990).

5.20.320 Modification.

In the event the franchisee shall seek to have the existing franchise modified, Section 625 of the Act shall govern the procedure for the modification request unless the town and franchisee shall otherwise agree. Both parties shall act in good faith to reach agreement. (Ord. 90-5 § 32, 1990).

5.20.330 Nondiscrimination.

The franchisee shall not as to rates, charges, service facilities, rules, regulations, or in any other respect make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage, provided that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled, and provided further that connection and/or service charges may be waived or modified during promotional campaigns of franchisee.

The franchisee will not deny access to cable communications service to any group of potential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 95-10 § 11, 1995; Ord. 90-5 § 33, 1990).

5.20.340 Equal employment opportunity.

The franchisee shall comply with all provisions of Section 634 of the Act. (Ord. 90-5 § 34, 1990).

5.20.350 Continuity of service.

It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to the franchisee are fulfilled.

A. In this regard the franchisee shall act so far as it is within the control of the franchisee so as to ensure that all subscribers receive continuous uninterrupted service during the term of this franchise.

B. In the event the franchisee fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the town or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond franchisee’s control, the town or its designee may, after notice and an opportunity for franchisee to commence operations at its option, operate the system until such time as the franchisee restores service to conditions acceptable to the town, or a permanent franchisee is selected. If the town is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the town for all reasonable costs or damages in excess of revenues from the system received by the town that are the result of the franchisee’s failure to perform. (Ord. 90-5 § 35, 1990).

5.20.360 Franchise renewal.

The provisions of Section 626 of the Act, as it exists on September 1, 1995, will govern the actions of the town and the franchisee in proceedings relating to franchise renewal. The town expressly reserves the right to establish guidelines and monitoring systems in accordance with the provisions of the Act to measure the effectiveness of the franchisee’s performance during the term of such franchise. (Ord. 95-10 § 12, 1995; Ord. 90-5 § 36, 1990).

5.20.370 Transfer of ownership.

Any franchise awarded by the town shall be based upon an evaluation by the town of each application, the qualifications, and other criteria as such pertain to each particular applicant. No franchise can be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary, merger, consolidation or otherwise, unless approval is granted by the town council under the same terms and conditions as the original franchise or as it may be subsequently amended by mutual agreement to insure a review of unforeseen circumstances not present at the time of the original franchise. The town’s approval shall not be unreasonably withheld. Such costs associated with this process shall be reimbursed to the town by the new prospective franchisee.

An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

The franchisee shall promptly notify the town prior to any proposed change in, or transfer of, or acquisition by any other party of control of the franchisee’s company. Every change, transfer or acquisition of control of the franchisee’s company shall make the franchise subject to cancellation unless and until the town shall have consented thereto. In the event that the town adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the town may cancel the franchise unless control by the franchisee is restored to a status acceptable to the town council.

Such approval of transfer, subject to conditions enumerated above, shall not be unreasonably withheld. Approval of the town shall not be required if said transfer is from franchisee to another person or entity, controlling, controlled by or under common control with the franchisee. Approval shall not be required for mortgaging purposes provided that less than 50 percent of the beneficial interests, as described above, are affected by such mortgage.

Upon the commencement of a foreclosure action or other action which could possibly result in a judicial sale of all or a substantial part of the cable system, the franchisee shall notify the town of such fact in writing, and such notification shall be treated as a notification that a change in control of the company has taken place, and the provisions of this chapter governing the consent of the town council to such change in control of the franchisee shall apply.

Any transfer or assignment approved by the town shall be evidenced by a written instrument, a duly executed copy of which shall be filed in the office within 60 days after the approval of the transfer or assignment by the town. By said instrument, the assignee shall agree to comply with all terms of this chapter, the franchise ordinance, and the assignor’s application. The town shall have the right, at its sole discretion, to require that any conditions in the original franchise be fulfilled prior to such transfer. Such costs associated with this process shall be reimbursed to the town by the new prospective franchisee. (Ord. 90-5 § 37, 1990).

5.20.380 Right of town to purchase.

The town reserves the right to purchase the existing system pursuant to Section 627 of the Act. (Ord. 90-5 § 38, 1990).

5.20.390 Removal and abandonment of property of franchisee.

The town may direct the franchisee to temporarily disconnect or bypass any equipment of the franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the town. Such removal, relocation or other requirement shall be at the sole expense of the franchisee.

In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of this chapter or other town ordinances, or this chapter has been terminated, cancelled, or has expired, the franchisee shall promptly, upon being given 10 days’ notice, remove within six months from the streets or public places all such property of such system other than any which the town may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the street or other areas from which such property has been removed to a condition similar to that condition existing before such removal.

Any property of the franchisee remaining in place six months after the termination or expiration of the franchise shall be considered permanently abandoned. The town may extend such time not to exceed an additional 90 days.

Any property of the franchisee to be abandoned in place shall be abandoned in such manner as the town shall prescribe. Upon permanent abandonment of the property of the franchisee in place, the property shall become that of the town, and the franchisee shall submit to the town clerk an instrument in writing, to be approved by the town attorney, transferring to the town the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state or federal law or the Constitution. In the event the town and the franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this section, either party may invoke arbitration to resolve such question. (Ord. 90-5 § 39, 1990).

5.20.400 Revocation for cause.

A. Any franchise granted by the town may be terminated during the period of such franchise for the following reasons:

1. Failure by the franchisee to substantially comply with material provisions of this chapter;

2. Failure of the franchisee to comply with FCC regulations, or other provisions of the Act.

B. The procedure to be followed resulting in termination for any of the above reasons, save franchisee’s request, will be:

1. The town will direct in writing franchisee to correct such deficiencies or comply with such regulation within 30 days or a reasonable period of time if the deficiency or other item is not subject to correction within 30 days.

2. Failure to do so will cause the matter of termination to be brought before the town council.

3. At such hearing the franchisee and other interested parties may offer evidence explaining or mitigating such noncompliance. The town council in its sole discretion, will make the determination as to whether such noncompliance was without just cause. In the event the town council finds that such noncompliance was without just cause, the town council may, at its sole discretion, fix an additional time period to cure such deficiency(ies). If the deficiency has not been cured at the expiration of any additional time period or if the town council does not grant any additional period, the town council may by ordinance declare the franchise to be terminated and forfeited.

4. If the franchisee appeals the revocation and termination of the franchise through legal remedies, the revocation of such franchise shall be held in abeyance pending such de novo judicial review by a court of competent jurisdiction or, at the option of the franchisee, by an arbitrator using the rules of the American Arbitration Association for commercial arbitration or such other rules as the franchisee and town may agree.

5. Provided, nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, on satisfactory assurance made to the town council that the terms and conditions of this chapter can be met by the franchisee. (Ord. 95-10 § 13, 1995; Ord. 90-5 § 40, 1990).

5.20.410 Effect of termination for noncompliance.

Subject to state and federal law, if any franchise is terminated by the town by reason of the franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property shall, at the election of the town, become the property of the town at a cost consistent with the provisions of Section 627(b)(1) of the Act. If the town, or a third party, does not purchase the system, the franchisee shall, upon order of the town council, remove the system. (Ord. 90-5 § 41, 1990).

5.20.420 Indemnify and hold harmless.

The franchisee will indemnify and hold harmless the town from any and all liabilities, fees, costs and damages except in the case of negligence or wilful misconduct on the part of the town, whether to person or property, or expense of any type or nature which may occur to the town by reason of the construction, operation, maintenance, repair and alterations of franchisee’s facilities or any other actions of franchisee in the town. In any case in which suit or action is instituted against the town by reason of damages or injury caused by franchisee, the town shall cause written notice thereof to be given to the franchisee and franchisee thereupon shall have the duty to appear and defend in any such suit or action, without cost or expense to the town. (Ord. 90-5 § 42, 1990).

5.20.430 Insurance.

The franchisee shall concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the town and file with the town clerk and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the town, its officers, boards, commissions, agents and employees, protecting the town and all persons against liability for loss or damage for personal injury, death and property damage, and errors or omissions occasioned by the operations of the franchisee under such franchise, with minimum limits of $1,000,000 for both personal injury and/or property damage.

The policies mentioned in the foregoing paragraph shall name the town, its officers, boards, commissions, agents and employees, as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the town 30 days in advance of the effective date thereof; if such insurance is provided by a policy which also covers franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 90-5 § 43, 1990).

5.20.440 Inconsistency.

If any portion of this chapter should be inconsistent with any rule or regulation now or hereinafter adopted by the FCC or other federal legislation, then to the extent of the inconsistency, the rule or regulation of the FCC or other federal legislation shall control for so long, but only for so long, as such rule or regulation shall remain in effect, but the remaining provisions of this chapter shall not hereby be effected. (Ord. 90-5 § 44, 1990).

5.20.450 Force majeure.

In the event that the franchisee’s performance of any of the terms, conditions, obligations or requirements of this chapter is prevented or impaired due to any cause(s) beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof. (Ord. 90-5 § 46, 1990).