Chapter 5.116 CABLE SYSTEM REGULATIONS

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 subscribers of video programming or other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

5. “Cable system” or “system” means any facility, consisting of a set of closed transmissions 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 subscribers 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 subscribers 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 subscribers, unless the extent of such use is solely to provide interactive on-demand services;

d. An open video system that complies with federal statutes; or

e. Any facilities of any electric utility used solely for operating its electric utility systems.

6. “City” means the city of Everett, Washington, a body politic and corporate under the laws 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 Everett city council, or its successor, the governing body of the city.

8. “Customer service standards” means those customer service standards adopted by ordinance applicable to cable operators, Chapter 5.117 of this code.

9. “FCC” means the Federal Communications Commission.

10. “Franchise” means an ordinance adopted by the city pursuant to Article XIII of the City’s Charter that authorizes a person or entity to construct, operate, maintain or reconstruct a cable system. Upon the written acceptance by a franchisee, the franchise also constitutes a contract between the city and the franchisee.

11. “Franchise area” means the area within the jurisdictional boundaries of the city to be served by a franchisee, including any areas annexed by the city during the term of a 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 each 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.

14. “Subscriber” 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. (Ord. 2608-02 § 3, 2002)

5.116.030 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 customer service standards and the franchise. However, this shall not be deemed to require the grant of a franchise to any particular person or entity or to prohibit the city council from restricting the number of franchisees should it determine such a restriction would be in the public interest. (Ord. 2608-02 § 4, 2002)

5.116.040 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, rebuild, reconstruct, replace, maintain and retain cable lines, related electronic equipment, supporting structures, appurtenances 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;

C. Permit the franchisee to maintain and operate said cable system for the origination, reception, transmission, amplification and distribution of cable television and radio signals and for the delivery of cable service; and

D. Set forth the obligations of the franchisee under the franchise. (Ord. 2608-02 § 5, 2002)

5.116.050 Nonexclusive franchise.

Any franchise granted pursuant to this chapter shall not preclude the city from granting other or further or future franchises or permits or preclude the city from using any rights-of-way or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the city to make all necessary changes, as the city in its sole discretion shall decide, including the dedication, establishment, maintenance and improvements of all rights-of-way and thoroughfares and other public properties of any type. (Ord. 2608-02 § 6, 2002)

5.116.060 Application.

A. An applicant for an initial franchise shall submit to the city a written application in a format 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 twenty 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. Application—Contents. An application for an initial franchise for a cable system shall contain, at a minimum:

l. A statement as to the proposed franchise and information relating to the characteristics and location of the proposed 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 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 managing partners, members, and employees of the applicant, together with a description of the background of all such persons;

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

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

2. Qualifications. 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. No Conflicting Interests. Whether the applicant has any conflicting interests, either financial or commercial, that will be contrary to the interests of the city;

4. Compliance with the Franchise and Local Laws. Whether the applicant will comply with all of the terms and conditions placed upon a franchisee by the franchise, city charter, this chapter, customer service standards and other applicable local laws and regulations;

5. Compliance with Other Requirements. 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 sixty 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. 2608-02 § 7, 2002)

5.116.070 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. 2608-02 § 8, 2002)

5.116.080 Franchise territory.

Any franchise granted hereunder shall be valid for those geographic areas specified in the franchise. (Ord. 2608-02 § 9, 2002)

5.116.090 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 general ordinances necessary to 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. 2608-02 § 10, 2002)

5.116.100 Use of rights-of-way.

For the purposes of operating and maintaining a 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 or alteration of the 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 and ordinances, including, but not limited to, land use and zoning requirements. (Ord. 2608-02 § 11, 2002)

5.116.110 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. 2608-02 § 12, 2002)

5.116.120 Franchise fees.

The franchisee shall pay the city franchise fees in accordance with the terms of the franchise. (Ord. 2608-02 § 13, 2002)

5.116.130 Taxes.

Nothing in this chapter shall limit the franchisee’s obligation to pay applicable local, state and federal taxes. (Ord. 2608-02 § 14, 2002)

5.116.140 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 ordinances which are now existing or hereafter lawfully adopted. (Ord. 2608-02 § 15, 2002)

5.116.150 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. 2608-02 § 16, 2002)

5.116.160 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. 2608-02 § 17, 2002)

5.116.170 Coverage.

A. 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.

B. Commercial facilities shall be served in accordance with the provisions of the franchise. (Ord. 2608-02 § 18, 2002)

5.116.180 Technical standards.

Franchisee shall construct, install, operate and maintain its cable system in a manner consistent with all enacted and applicable federal, state and local laws and regulations, FCC technical standards and any other applicable standards set forth in the franchise. (Ord. 2608-02 § 19, 2002)

5.116.190 Construction standards.

A. All facilities constructed or operated under this chapter shall be placed and maintained at such places and positions 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, the state of Washington requirements, and city regulations.

B. 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 generally applicable ordinances, rules, regulations and policies 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. 2608-02 § 20, 2002)

5.116.200 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 are necessary for the construction, installation, operation, repair or maintenance of franchisee’s facilities for the life of the street, provided that no action by a 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 such failed street cut or repair completed by franchisee or franchisee’s agent(s), as determined by the city engineer. (Ord. 2608-02 § 21, 2002)

5.116.210 Safety requirements.

The franchisee shall, at all times, employ professional care and shall 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, 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. 2608-02 § 22, 2002)

5.116.220 Regulation of rates and charges.

The city may regulate franchisee’s rates and charges to the full extent permitted by law. (Ord. 2608-02 § 23, 2002)

5.116.230 Privacy.

The franchisee will be bound by all of the provisions of applicable federal, state and local privacy laws. (Ord. 2608-02 § 24, 2002)

5.116.240 Discriminatory practices prohibited.

The franchisee shall not deny cable service or otherwise discriminate against subscribers or others on the basis of race, color, religion, national origin, sex, age, disability or other protected classes. (Ord. 2608-02 § 25, 2002)

5.116.250 Equal employment opportunity.

The franchisee shall strictly adhere to and comply with the equal employment opportunity requirements of federal, state and local laws. (Ord. 2608-02 § 26, 2002)

5.116.260 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 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 transaction, costs of consultants, notice and publication costs, and document preparation expenses. In connection with the foregoing, the city will then send franchisee an itemized description of all such charges, and franchisee shall pay such amount within forty-five days after the receipt of such description. (Ord. 2608-02 § 27, 2002)

5.116.270 Discounts.

The city encourages franchisee to provide special rate discounts for certain senior subscribers and permanently disabled subscribers as follows:

A. Eligibility. The eligibility for the special rate considerations set forth in this section shall be limited to those subscribers who qualify as a “senior” or as “permanently disabled” under the city’s prevailing standards and procedures and who must also be eligible for utility discounts from the city. The subscriber must also be the owner-occupant of a single-family or multiple dwelling unit residence or the legally responsible lessee of a rental residential unit.

B. Free Installation. Franchisee is also encouraged to waive the standard installation fee for those dwelling units within one hundred twenty-five feet of franchisee’s cable system for those subscribers who are eligible under subsection A of this section. (Ord. 2608-02 § 28, 2002)

5.116.280 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. 2608-02 § 29, 2002)

5.116.290 Franchise revocation.

Any franchise granted by the city may be revoked during the period of such franchise, as provided in the City’s Charter or 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. 2608-02 § 30, 2002)

5.116.300 Acceptance.

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective. Within thirty days after the adoption by the city council of the ordinance awarding a franchise, or within such extended period of time as the city council in its discretion may authorize, the franchisee shall file with the city clerk its written, unconditional and acknowledged acceptance of the franchise, in a form satisfactory to the city attorney. (Ord. 2608-02 § 31, 2002)

5.116.310 Conflicts.

Where a franchise and this chapter conflict, both shall be liberally interpreted to achieve a common meaning or requirement. In the event that this is not possible within reasonable limits, the franchise shall prevail. (Ord. 2608-02 § 32, 2002)

5.116.320 Miscellaneous provisions.

A. Governing Laws. This chapter shall be construed in a manner consistent with all applicable federal, state and local laws, and shall apply to all franchises granted or renewed after the effective date of this chapter to the extent permitted by applicable law.

B. Captions. 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. Chapter References. A franchise which cites, refers to or otherwise incorporates this chapter, or portions hereof, shall be deemed to be a franchise issued under and subject to this chapter.

D. No Enforcement by the City. 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.

E. Applicability. The provisions of this chapter shall apply to all cable operators and cable systems to the greatest extent permissible under applicable law. (Ord. 2608-02 § 33, 2002)