Chapter 5.15
CABLE COMMUNICATIONS FRANCHISES

5.15.000    Chapter Contents

Sections:

5.15.010    Title of ordinance.

5.15.020    Definitions.

5.15.030    Authority to grant.

5.15.040    Incorporation of provisions in franchise.

5.15.050    Scope.

5.15.060    Duration.

5.15.070    Eminent domain.

5.15.080    Interpretation.

5.15.090    Limitations.

5.15.100    Rights reserved to city.

5.15.110    Application – Required.

5.15.120    Application – Contents.

5.15.130    Application – Solicitation.

5.15.140    Application – Administrative recommendation.

5.15.150    Application – Council considerations.

5.15.160    Application – Rejection.

5.15.170    Application – Further consideration – Notice.

5.15.180    Application – Determination after hearing.

5.15.190    Application – Denial resolution – Granting ordinance.

5.15.200    Application – Payment of city expenses.

5.15.210    Renewal – Hearing.

5.15.220    Renewal – Proposal.

5.15.230    Renewal – Administrative proceeding.

5.15.240    Renewal – Decision.

5.15.250    Renewal – Denial – Basis.

5.15.260    Renewal – Denial – Appeal.

5.15.270    Renewal – Other procedures.

5.15.280    Acceptance.

5.15.290    Transfer or assignment.

5.15.300    Termination – Grants.

5.15.310    Termination – Procedures.

5.15.320    Termination – Grantee actions.

5.15.330    Standards generally.

5.15.340    Compatibility.

5.15.350    Preventative maintenance.

5.15.360    Testing of services offered.

5.15.370    Repairs – Service interruptions.

5.15.380    Permits and authorizations.

5.15.390    Construction – Schedule.

5.15.400    Construction – Poles and conduits.

5.15.410    Construction – Aboveground facilities.

5.15.420    Construction – Underground facilities.

5.15.430    System extension.

5.15.440    Excavation in street.

5.15.450    Raising or lowering lines for moving of buildings.

5.15.460    Completion of street work by city.

5.15.470    Removal of noncomplying facilities.

5.15.480    Changes required by public improvement.

5.15.490    Abandonment of grantee property.

5.15.500    Service reliability.

5.15.510    Safety requirements.

5.15.520    Service area.

5.15.530    Establishment of service – Continuance.

5.15.540    Basic system capability.

5.15.550    Local origination and access facilities.

5.15.560    Municipal services.

5.15.570    Interconnection.

5.15.580    Emergency service.

5.15.590    Subscriber service terms.

5.15.600    Subscriber privacy.

5.15.610    Rates and charges – Federal and state preemption.

5.15.620    Rates and charges – Changes.

5.15.630    Rates and charges – Standards.

5.15.640    Franchise fee.

5.15.650    Insurance required.

5.15.660    Worker’s compensation.

5.15.670    Bond.

5.15.680    Security fund.

5.15.690    Indemnification to city.

5.15.700    Examination of property.

5.15.710    Reports, records and plans.

5.15.720    Adoption of rules and regulations.

5.15.730    Amendment of chapter and franchise.

5.15.740    Notices.

5.15.750    Violations – Designated.

5.15.760    Violation – Fines and penalties.

5.15.010 Title of ordinance

The ordinance codified in this chapter shall be known as the “Olympia Cable Communications Ordinance.”

(Ord. 4624 §1, 1985).

5.15.020 Definitions

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

1.    “Applicant” means any person or corporation submitting an application for a cable communications franchise, or responding to a request for proposals with respect to such a franchise.

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

3.    “Cable Act” means “The Cable Communication Policy Act of 1984,” Pub.L. No. 98-549.

4.    “Cable communications system” or “CATV system” means a system employing antennae, microwave, wire, wave-guides, coaxial cables, or other conductors, equipment or facilities, designed, constructed or used for the purpose of:

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

b.    Transmitting original cable cast programming not received through television broadcast signals;

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

d.    Transmitting and receiving all other signals: digital, voice, audiovisual, or other forms of electronic or electrical signals.

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

6.    “City” means the city of Olympia, a municipal corporation of the state, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

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

8.    “Council” means the governing body of the city as of the effective date of the ordinance codified in this chapter, or any future board constituting the legislative body of the city.

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

10.    “Franchise,” “franchise ordinance” or “franchise agreement” means any authorization granted under this chapter in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a cable communications system in the city.

11.    “Grantee” means the person, firm or corporation granted a franchise by council under this chapter, and the lawful successor, transferee or assignee of that person, firm or corporation.

12.    “Grantor” means the city acting through its council.

13.    “Gross revenues” means any and all compensation in whatever form, directly or indirectly received by the grantee, from its Olympia cable communications system, 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.

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

15.    “Institutional network” means a cable communications network designed principally for the provision of nonentertainment two-way services to nonprofit businesses, schools, public agencies or other nonprofit agencies for use in connection with the ongoing operations of such institutions.

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

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

18.    “Interactive services” means services provided to subscribers whereby the subscriber either (a) both receives information consisting of either television or other signal and transmits signals generated by the subscriber or equipment under his or her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (b) transmits signals to any other location for any purpose.

19.    “Leased access channel” means any channel or portion of a channel available for programming to persons or entities other than the grantee for a fee or charge.

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

21.    “Nonbasic service” means any communications service in addition to basic services including, but not limited to, pay TV, burglar alarm service, fire alarm service, data transmission, facsimile service, home shopping service, etc.

22.    “Premium” or “pay TV service” means that class of nonbasic service which includes pay-per-program, pay-per-channel, or subscription service, delivered to subscribers for a fee or charge over and above the regular charges for basic service.

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

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

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

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

27.    “Streets, public ways or rights-of-way” means the surface of and the space above and below any public street, avenue, road, highway, freeway, boulevard, lane, concourse, driveway, bridge, tunnel, park, parkway, sidewalk, waterway, dock, pier, alley, court, rights-of-way, public utility easement, or any other public place, ground or water, existing as of or after the effective date of the ordinance codified in this chapter within the city.

28.    “Subscriber” means any person or institution that elects to subscribe, for any purpose, to a service provided by the grantee by means of or in connection with the cable communications system, pursuant to this chanter or any franchise agreement.

29.    “Tapping” means the unauthorized observing of 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. 4624 §2, 1985).

5.15.030 Authority to grant

It is unlawful to engage in or commence construction, operation, or maintenance of a cable communications system without a franchise issued under this chapter, except as may be otherwise provided by state or federal law. The council may, by ordinance, award a nonexclusive 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 council from restricting the number of grantees should it determine such a restriction would be in the public interest. Any franchise for the construction, maintenance and operation of cable television systems using the public streets, utility easements, other public rights-of-way or places shall conform generally to the provisions of this chapter, except as may be otherwise set forth in the ordinance granting such franchise.

(Ord. 4624 §3.1, 1985).

5.15.040 Incorporation of provisions in franchise

A.    The provisions of this chapter may be incorporated by specific reference in any franchise agreement approved under this chapter. However, in the event of any conflict or ambiguity arising between the provisions of any franchise agreement and those of this chapter, the provisions of the franchise agreement shall prevail.

B.    The provisions of any request for proposals (RFP) issued under this chapter, including any minimum system and services specifications set forth in a request, may be incorporated by specific reference in any franchise agreement approved under this chapter.

C.    The provisions of any proposal submitted and accepted by the city may be incorporated by specific reference in the applicable franchise or license.

(Ord. 4624 §3.2, 1985).

5.15.050 Scope

Any franchise granted under this chapter by the city shall authorize the grantee, subject to the provisions contained in this chapter to:

A.    Engage in the business of operating and providing cable communication service and the distribution and sale of such service to subscribers within the city;

B.    Erect, install, construct, repair, replace, reconstruct, upgrade, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, 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 grantee franchised or permitted to do business in the city;

C.    Maintain and operate the franchise properties for the origination, collection, transmission, amplification, distribution and reception of electrical or radiant energy.

(Ord. 4624 §3.3, 1985).

5.15.060 Duration

A.    A franchise shall be effective on the thirtieth day after approval of the franchise agreement or license, provided that the grantee has filed, within twenty days after such effective date, a written instrument, addressed to the council, accepting the franchise, together with the bond and insurance policies required by Sections 5.15.650 through 5.15.670, agreeing to comply with all of the provisions hereof.

B.    A franchise shall expire fifteen years after acceptance thereof unless sooner terminated by ordinance.

(Ord. 4624 §3.4, 1985).

5.15.070 Eminent domain

Nothing in this chapter 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 by purchase, or through the exercise of the right of eminent domain, nor any other of the rights of the city under the franchise or any provision of law.

(Ord. 3624 §3.5, 1985).

5.15.080 Interpretation

Unless otherwise specifically prescribed in this chapter, the following provisions shall govern the interpretation and construction of a franchise:

A.    Time is of the essence. The grantee shall not be relieved of its obligation to promptly comply with any provision of this chapter, or the ordinance granting the franchise, by any reasonable failure of the city to enforce prompt compliance with such provision.

B.    Any right or power conferred, or duty imposed upon any officer, employee, department or board of the city, is subject to transfer by operation of law to any other officer, employee, department or board of the city.

C.    A franchise does not relieve the grantee from any ordinance, rules, regulation or specification of the city (“requirement”), including, but not limited to any lawful exercise of the city’s police power, or any requirement relating to street work, street excavation permits, or the use, removal or relocation of property in streets. However, the city will impose no such requirement on a grantee which is in conflict with the provisions of a franchise agreement.

(Ord. 4624 §4.1, 1985).

5.15.090 Limitations

A.    No privilege or exemption is granted or conferred by a franchise except those specifically prescribed therein.

B.    Any privilege claimed under a franchise by the grantee in any street shall be subordinate to any prior lawful occupancy of the street. The city reserves the right to reasonably designate where a grantee’s facilities are to be placed within the public ways.

C.    The grantee shall at all times comply with all applicable rules of the Federal Communications Commission.

D.    Nothing contained in this chapter shall be deemed to prohibit in any way the right of the city to provide, for consideration, rights or privileges in addition to those set forth in Section 5.15.050.

E.    Any franchise granted under this chapter 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.

F.    Whenever in the judgment of the city it is deemed impracticable to permit erection of poles or construction of underground conduit system by any utility which may at the time have authority to construct or maintain a conduit or poles in street area, city may require the grantee to afford to such utility the right to use such poles or facilities of the grantee as practicable, provided that before imposing such requirement, city shall first notify grantee and shall take account of grantee’s reasonable present and future needs. The city shall require a utility, when using the grantee’s poles or facilities, to pay the grantee a fee not to exceed fees charged the grantee for comparable use of facilities, and to indemnify, defend and hold harmless grantee from any damage or liability caused by the utility’s use thereof.

G.    The franchise agreement and applicable provisions of this chapter represent the full and complete agreement and accord between the city and a grantee. Neither the city nor a grantee shall contest or challenge any provision of a franchise agreement or this chapter on the basis of unreasonableness or ambiguity, except as may be permitted under federal or state law.

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

I.    Any privilege claimed, under any franchise granted hereunder, in any public rights-of-way or other public property, shall be subordinate to the public use and any other lawful use thereof.

J.    To the full extent permitted by law, the grantee shall be subject to the provisions of general laws of the state of Washington, as of the effective date of the ordinance codified in this chapter or as thereafter 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.

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

1.    Imposing a fee or charge for any service or repair to subscriber-owned receiving or transmitting devices;

2.    Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business prohibited in this chapter to be engaged in by grantee, except as provided under law;

3.    Providing information concerning the viewing patterns of identifiable individual subscribers to any group, organization or person for any purposes, except as provided under law;

4.    Installing, maintaining or operating on any television set a coin box or any other device or means for collection of money for individual programs.

L.    Should the state of Washington or the United States Government, or any branch or agency thereof, subsequent to the enactment of the ordinance codified in this chapter, require the grantee or city to act in a manner which is materially inconsistent with any provisions of this chapter, or enact any provisions which materially changes the rights or responsibilities of either the city or grantee, either party shall have the right to reopen negotiations seeking to modify or amend any section of this agreement to such reasonable extent as may be necessary to implement the original purpose and intent of the parties; provided, this section shall not be construed to require the parties to conclude an agreed modification or amendment. Should the parties fail to reach a negotiated amendment or modification within a reasonable period of time, either the city or grantee may exercise any right or remedies available under applicable law.

M.    The preemption or preclusion of the exercise by the city of any of its police powers shall not diminish, impair or affect any other contractual benefit to or obligation of the city or grantee under any franchise.

N.    The form of the grantee’s contract with the subscriber shall be subject to approval of the city, in the manner set forth in a franchise agreement.

O.    By enacting this chapter, it is not the city’s intention to prohibit the erection or controlled use of individual television antennas, or to require any person to receive cable communications service or connect with a cable communications system.

P.    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, within sixty days of the time 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 by commercial banks in the Seattle area.

Q.    A franchise to proceed with operation, or construction and 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, privileges or authority set forth in this chapter or the franchise document itself, in the same or other streets, alleys, public highways, public places, or other public rights-of-way by agreement, franchise, permit or otherwise; provided, however, that the city will issue no new franchise which would create unfair competition with an existing franchise.

(Ord. 4624 §4.2, 1985).

5.15.100 Rights reserved to city

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

B.    The city reserves to itself the right to initiate or to intervene in any suit, action or proceeding involving any provision of this chapter, or any franchise or subscriber agreement. The city may act as a mediator in disputes between the grantee and subscriber(s) and may in other ways attempt to resolve such disputes; provided, however, that in the event such dispute resolution is ineffective, city, grantee and subscribers are reserved all rights available to them under law.

C.    The city at its option, when for sufficient cause as determined by the council, may require the grantee to conduct an annual proof of performance test in accordance with FCC rules. The city may require that such test be conducted or observed by a qualified member of the city’s staff or representative. If the result of such annual test reasonably indicates the need for further testing, the city may require additional performance tests be conducted in a reasonable manner at a greater number of test points than the minimum required by FCC rules.

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

E.    The city reserves the right to negotiate reasonable technical and operational performance standards for franchises granted pursuant to this chapter. The grantee shall have the duty to negotiate in good faith with the city with respect to such matters.

F.    The city reserves the right to enact reasonable regulations pertaining to and consistent with any franchise 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; and

7.    Movement of facilities.

G.    The city reserves the right to maintain, or establish and maintain, a cable communications advisory committee to assist the council in regulating cable activity in the city. The members and duties of any such committee will be established by the council.

H.    The city reserves the right to join with one or more of the other local area city and/or county governments in the formation and operation of an intergovernmental administration of the cable communications franchises of the various members of the joint authority. The city reserves the right to assign the administration of the provisions of any franchise granted pursuant to this chapter to such a duly established joint authority, and to join with other members of the authority in developing such intergovernmental agreement bylaws, rules and regulations as necessary for the proper administration of the joint authority; provided, that no such association or assignment by city shall interfere with or derogate from the rights of a grantee under a preexisting franchise agreement.

I.    No grantee nor any major stockholder of a grantee shall directly or indirectly use the position as cable grantee to gain an unlawful competitive advantage in the business of selling, leasing, renting, servicing or repairing radio or television sets or receivers or parts thereof, or data access and transfer equipment which makes use of entertainment and information signals; provided, that nothing in this chapter 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 subscribers’ 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 operators for use in the conduct of their business.

J.    The city shall have the right, free of charge, of installing, maintaining and operating at its own expense, upon antenna towers, poles and in conduit of the grantee, coaxial cable, wire, fixtures, and appurtenances necessary for a city communications system, provided such equipment is installed, maintained and operated so as not to interfere with the present and future property or operations of the grantee, and that the city shall indemnify and hold harmless the grantee from any damage which occurs to any property as a result of such use by the city.

K.    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, to the extent said interconnection adversely affects signal and picture quality under a franchise.

(Ord. 4624 §4.3, 1985).

5.15.110 Application –Required

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

(Ord. 4624 §5.1.1, 1985).

5.15.120 Application –Contents

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

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

B.    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:

1.    The names, residence and business addresses of all officers, directors and associates of the applicant,

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

3.    The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant 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,

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

5.    A detailed and complete financial statement of the applicant,

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

C.    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:

1.    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,

2.    A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall the operational and performance standards be less than those adopted by the Rules and Regulations of the FCC (contained in Title 47, Subpart K, Sections 76.601 et seq. 9), and as augmented in this chapter and modified by the franchise awarded,

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

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

5.    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,

6.    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;

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

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

F.    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, money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof 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 delivers to the city clerk a written withdrawal of or cancellation of any application following the date such application is received by the city clerk shall be entitled to have returned and refunded the sum of fifty percent of the fee less any actual costs or expenses incurred by the city by reason of such application.

(Ord. 4624 §5.1.2, 1985).

5.15.130 Application –Solicitation

The council may, by advertisement or otherwise, solicit any application for cable communications system franchises, and may determine and fix any date upon, after, or before 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.

(Ord. 4624 §5.1.3, 1985).

5.15.140 Application –Administrative recommendation

Upon receipt of any application for a franchise, the council shall refer the same to the city manager or cable communications advisory committee, if such exists, who shall prepare a report and make recommendations respecting such application, and cause the same to be completed and filed with the council within one hundred and twenty days.

(Ord. 4624 §5.1.4, 1985).

5.15.150 Application –Council considerations

In making any determinations under this chapter as to any application the council shall give due consideration to the character and quality of the service proposed, rates to subscribers, experience, character, background and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and to applicant’s ability to meet construction and operating requirements. The council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding.

(Ord. 4624 §5.1.5, 1985).

5.15.160 Application –Rejection

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

(Ord. 4624 §5.1.6, 1985).

5.15.170 Application –Further consideration –Notice

If the council determines to further consider the application, the following shall be done:

A.    The council shall decide and specify the terms and conditions of any franchise to be granted under this chapter and as provided in this chapter.

B.    The council shall give notice of its intention to consider the granting of such a franchise, stating the names of the proposed grantee, and that copies of the proposed franchise may be reviewed at the office of the city clerk, 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 thereof may file written protests and appear before the council and be heard, and directing the city clerk to public notice of the resolution’s adoption at least once within ten days of the passage thereof in a newspaper of general circulation within the city.

(Ord. 4624 §5.1.7, 1985).

5.15.180 Application –Determination after hearing

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

A.    That such franchise be denied; or

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

1.    Charges for installation;

2.    Subscriber rates;

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

(Ord. 4624 §5.1.8, 1985).

5.15.190 Application –Denial resolution –Granting ordinance

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

(Ord. 4624 §5.1.9, 1985).

5.15.200 Application –Payment of city expenses

The grantee, within thirty days of receipt of written notification by grantor following franchise award, upon initial franchise award and any renewal thereof, shall pay to the city a sum of money to reimburse the city for all expenses incurred by the provisions of this chapter regarding the franchise award or renewal process, beyond those defrayed by application fees. The city shall furnish the grantee a statement of such expenses with the notification.

(Ord. 4624 §5.1.10, 1985).

5.15.210 Renewal –Hearing

During the six-month period which begins with the thirty-sixth month before a franchise expiration, the city may, and in any event shall at the request of grantee, commence a public hearing to afford citizens notice and participation for the purpose of (A) identifying future cable-related needs and interests within the city and (B) reviewing the performance of the grantee under the then-existing franchise.

(Ord. 4624 §5.2.1, 1985).

5.15.220 Renewal –Proposal

Upon completing a public hearing proceeding under Section 5.15.210, a grantee seeking renewal of an existing franchise may, on its own initiative or at the request of the city, submit a proposal for franchise renewal. Subject to applicable limitations on regulatory authority of the city, any such proposal shall contain such material as the city may reasonably require, including proposals for an upgrade of the system. The city may establish a date by which such proposal shall be submitted, which date should be consistent with the intent expressed in the Cable Act, Section 626.

(Ord. 4624 §5.2.2, 1985).

5.15.230 Renewal –Administrative proceeding

A.    Upon submittal by the grantee of a proposal to the city for renewal, the city shall provide prompt public notice of such proposal and, during the four-month period which begins on the completion of any proceedings under Section 5.15.210, renew the franchise or, at the request of the grantee or on its own initiative, commence an administrative proceeding described in this section to consider whether:

1.    The grantee has substantially complied with the material terms of the existing franchise and with applicable law;

2.    The quality of the grantee’s service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality or level of cable services or other service provided over the system, has been reasonable in light of community needs;

3.    The grantee has the financial, legal and technical abilities to provide the services, facilities and equipment as set forth in the grantee’s proposal; and

4.    The grantee’s proposal is reasonably likely to meet future cable-related needs of the city, taking into account the cost of meeting such needs.

B.    In any proceeding under subsection A of this section the grantee shall be afforded adequate notice and the grantee and the city or city’s designee shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceedings held pursuant to Section 5.15.210), to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.

(Ord. 4624 §5.2.3, 1985).

5.15.240 Renewal –Decision

At the completion of a proceeding under Section 5.15.230 the city shall issue a written decision granting or denying the grantee’s proposal for renewal based upon the record of such proceeding, and shall transmit a copy of such decision to the grantee. Such decision shall state the reasons therefor.

(Ord. 4624 §5.2.4, 1985).

5.15.250 Renewal –Denial –Basis

Any denial of proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subdivisions 1 through 4 of subsection A of Section 5.15.230 pursuant to the record of the proceeding held under Section 5.15.230. The city may not base a denial of renewal on failure to substantially comply with the material terms of the franchise under Section 5.15.230(A) or on events considered under Section 5.15.230(B) in any case in which a violation of the franchise or the events considered under Section 5.15.230(B) is alleged, unless the city has provided the grantee with notice and the opportunity to cure, or, in any case, in which it is documented that the grantee has waived its right to object or has effectively acquiesced in such determination.

(Ord. 4624 §5.2.5, 1985).

5.15.260 Renewal –Denial –Appeal

Any grantee whose proposal for renewal has been denied by final decision by the city made pursuant to this chapter, or has been adversely affected by failure of the city to act in accordance with the procedural requirements of this section, may appeal such final decision. Such action shall be commenced within one hundred twenty days after receiving notice of such determination. Such action may be brought in the United States District Court for the Western District of Washington or in the Superior Court of Thurston County. The court may consider the record made by the city in the proceeding held pursuant to Section 5.15.230, as well as other relevant matters placed in evidence, and shall award any appropriate relief consistent with the provisions of this chapter.

(Ord. 4624 §5.2.6, 1985).

5.15.270 Renewal –Other procedures

Without regard to the proceedings described in Sections 5.15.210 through 5.15.260, a grantee may submit a proposal for renewal of a franchise at any time, and city may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time. The denial of such a renewal shall not affect a grantee’s right to serve under the remaining term of an existing franchise or to submit a renewal application in accordance with the provisions of Section 5.15.220.

(Ord. 4624 §5.2.7, 1985).

5.15.280 Acceptance

A.    No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof, together with the bond and insurance policies and deposits required by Sections 5.15.650 through 5.15.680, shall have been filed with the city clerk. 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 a franchise agreement.

B.    The written acceptance shall be filed by the grantee within twenty days after the effective date of the ordinance granting such franchise, or in the event this day falls on a nonworking day, then on the next working day.

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 nor filed by the city clerk. The grantee shall have no rights, remedies or redress in the premises, unless and until the council, by resolution, determines that such acceptance be received or filed, and then upon such terms and conditions as the council may impose.

D.    Any franchise granted and accepted under this chapter 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. 4624 §5.3, 1985).

5.15.290 Transfer or assignment

A.    A franchise is a privilege to be held in personal trust by the grantee. The franchise shall not be assigned, nor shall any rights or privileges therein granted or authorized be leased, assigned, 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 any person(s), except the grantee, either by act of the grantee or by operation of law, without the consent or the city expressed by ordinance; provided, that the city recognizes it is common practice within the cable industry to finance system expansion by pledging, mortgaging or hypothecating existing systems and for that reason, and notwithstanding the foregoing, pledges or transfers in trust by mortgage or other hypothecation of the franchise or other assets of grantee’s system within the city by the grantee in whole or in part, to secure an indebtedness may be made and become effective without the city’s consent. The grantee shall promptly notify the city of any proposed transfer to or acquisition by any other party or other change in control of the grantee with respect to which the city’s consent may be required, pursuant to this subsection.

B.    Any unauthorized change in control of the grantee under subsection A of this section shall render a franchise subject to revocation unless and until the council has consented to it.

C.    Consent of the council to a transfer in control requiring city approval under subsection A of this section may not be granted until the council has examined and determined the proposed assignee’s legal, financial, technical, character and other qualifications to construct, operate and maintain a cable communications system in the city. The council may in its discretion afford all interested parties notice and an opportunity to be heard on such question. The grantee shall assist the city in any such examination. If no action is taken by the council within ninety days of notice being given, the proposed transfer shall be deemed to be approved.

D.    Consent of the council, if required under subsection A of this section, may not be unreasonably withheld.

E.    Except as otherwise may be provided in subsection A of this section, prior approval of the council shall be required where ownership of more than fifty percent of the voting stock of the grantee is acquired by a person or group of persons acting in concert, unless such person or group at the time of the acquisition already owns fifty percent or more of such voting stock, singly or collectively or is a corporate affiliate of the grantee.

F.    Any such proposed lease, transfer, assignment, sale or other disposition shall be made by written instrument, which shall include transferor’s acceptance of all terms and conditions of the franchise. A duly executed copy of such written instrument shall be filed with the city clerk within thirty days after any such transfer or assignment.

(Ord. 4624 §5.4, 1985).

5.15.300 Termination –Grants

Subject only to provisions of the state and federal law, the city may terminate a franchise, after a hearing as provided at Section 5.15.310, upon a showing that the grantee has failed to substantially comply with the material terms of this chapter in a manner not excused or required by applicable law. The nature of the grantee’s compliance and the materiality of the franchise terms should be interpreted in accordance with provisions of H.R. Rpt. No. 98-934 relating to franchise renewal.

(Ord. 4624 §5.5.1, 1985).

5.15.310 Termination –Procedures

This franchise may be terminated only in accordance with the following procedures:

A.    If the city manager has reason to believe this franchise should be terminated for the reason set forth in Section 5.15.300, he may submit the matter to the city council and, upon the council’s concurrence by resolution, shall issue to the grantee a notice to do or cease to do within the ensuing ninety days (or whatever longer period would be reasonable) the specific acts he believes would be the basis of a termination under a franchise agreement. The notice shall set forth clearly the acts which are the basis of the alleged breach.

B.    Upon receipt of notice, the grantee may cure by explaining the extenuating circumstances underlying, or by modifying, the acts which were the basis of the notice, and may thereupon petition the council to rescind the notice by reason of the grantee’s explanation or modification. In considering the grantee’s explanation of extenuating circumstances, which may include but are not limited to forces majeures, the council shall give due weight to conditions affecting the grantee’s performance which are beyond the grantee’s reasonable ability to control. If the city declines to rescind the notice, or, in any event, within thirty days following the time for performance set forth in the notice, the council may conduct a hearing under the procedures set forth in Sections 626(c)(1) and (2), and 626(d) of the Cable Act and this section, at the conclusion of which the council shall decide whether the franchise should be terminated.

C.    The grantee may seek judicial review of any decision to terminate a franchise, on the basis of the procedures set forth at Sections 626(e) and 635 of the Cable Act. In any such action, the court shall consider the record of the hearing and any other matters the court deems relevant to such action.

D.    A termination proceeding under this section may become final by virtue of the grantee’s having failed to pursue judicial review within the requisite period, or by final, nonreviewable judicial action.

(Ord. 4624 §5.5.2, 1985).

5.15.320 Termination –Grantee actions

Following final action by the city terminating this franchise, or upon expiration thereof without renewal, subject to any injunction, stay or other order which may be issued by a court on review, the grantee shall take the following actions if requested by the city:

A.    Remove the facilities comprising the cable system under its franchise with the city to the extent practicable;

B.    Sell the assets comprising the cable system to a successor cable company. The procedure in such sale shall be as follows: On request from the city, the grantee shall enter into good-faith negotiations with the successor grantee to determine the sale price of the grantee’s cable system. Such price shall be based on the fair market value of the system as an ongoing concern, including all real, personal, and intangible assets, but with no value allocated to the franchise itself. If after ninety days the grantee and successor grantee are unable to agree on the sale value of the system, any party, including the city, may file an action in federal or state court to establish the fair market value;

C.    Continue to provide cable service to subscribers under a limited extension of the franchise just terminated or expired, and in accord with the terms thereof, for a period up to one year from the completion of any judicial review.

(Ord. 4624 §5.5.3, 1985).

5.15.330 Standards generally

Standards of cable communications system(s) design, construction, safety, and operation of the grantee will meet, but are not limited to, all applicable city, state and national or federal codes, rules, regulations, and specifications referenced and/or set forth in this chapter and the franchise agreement, including those documents incorporated therein by reference.

(Ord. 4624 §6.1, 1985).

5.15.340 Compatibility

All cable communications systems authorized to be constructed and/or operated pursuant to this chapter shall be, insofar as financially and technically feasible, compatible one with another.

(Ord. 4624 §6.2, 1985).

5.15.350 Preventative maintenance

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

(Ord. 4624 §6.3. 1985).

5.15.360 Testing of services offered

Subscriber services from a newly constructed system, or one that has undergone a major upgrade, shall not be offered for sale prior to proof-of-performance testing in accordance with FCC Part 76.601 and technical specification and standards as set forth in the franchise agreement.

(Ord. 4624 §6.4, 1985).

5.15.370 Repairs –Service interruptions

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 practicable time. Such interruptions shall be preceded by notice, where practicable, and shall occur during a period of minimum use of the system, if feasible. A written log shall be maintained of all service interruptions. The log shall reflect date, time, duration, and reason for each service interruption. The record of the log shall be kept on file for a minimum of three years.

(Ord. 4624 §6.5, 1985).

5.15.380 Permits and authorizations

A.    Within thirty days of acceptance of the 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, encroachments permits, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television/communications systems, or associated microwave transmission facilities.

B.    In connection with subsection A of this section, copies of all public documents not proprietary in nature, including petitions, applications and communications submitted by the grantee to the FCC, 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 in a franchise granted under, shall also be submitted simultaneously to the city manager for information purposes.

(Ord. 4624 §7.1, 1985).

5.15.390 Construction –Schedule

A.    Within ninety days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, the grantee shall commence system construction, extension and/or upgrade as may be appropriate under the franchise agreement.

B.    Within two hundred forty days following franchise award, or as otherwise set forth in a franchise agreement, the grantee shall proceed to render service to subscribers in accordance with its system construction, extension and/or upgrade commitments under the franchise agreement. The completion of the system construction, extension and/or upgrade 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 made part of the franchise agreement shall be provided as set forth therein.

Failure on the part of the grantee to commence and with reasonable diligence pursue each of the foregoing requirements and to complete each of the matters set forth herein, except as otherwise provided for in the franchise agreement, shall be grounds for termination of such franchise. By resolution and order, the council, in its discretion, may extend the time for the commencement and completion of construction, extension, if the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

(Ord. 4624 §7.2.1, §7.2.2, §7.2.3, 1985).

5.15.400 Construction –Poles and conduits

Except as otherwise provided in a franchise agreement, the grantee shall utilize existing poles, conduits, and other facilities whenever practicable, 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 without first securing the written approval of the city’s director of public works.

(Ord. 4624 §7.2.4, 1985).

5.15.410 Construction –Aboveground facilities

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 avoid unsightly system installations.

(Ord. 4624 §7.2.5, 1985).

5.15.420 Construction –Underground facilities

The following provisions shall apply to undergrounding of facilities, except as may be otherwise provided in a franchise agreement:

A.    Except as provided in subsection D of this section, in those areas and portions of the city where the transmission and/or distribution facilities of utilities providing telecommunication or cable service, or those providing electric service, are underground or are 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 its transmission and distribution facilities.

B.    Except as provided in subsection D of this section, in new developments or subdivisions the grantee 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, or participate in joint trench construction with other utilities. The grantee will be responsible for the conduct of the engineering and labor to put the cable conduit in the trench. Prewiring of new dwellings by builder while under construction shall be mandatory, unless expressly approved to the contrary by the council. The grantee will be responsible for pulling in the cable, and providing the plant electronics and drops to individual dwelling units, after occupancy.

C.    Subject to approval by the council, incidental appurtenances such as amplifier boxes and pedestal-mounted terminal boxes may be placed above ground, but shall be of such size and design and shall be so located as not to be unsightly or hazardous to the public.

D.    Subject to the provisions below, all franchisees, lessees, or applicants for right-of-way permits must locate its new cable facilities on existing poles if the poles have capacity, including that provided by additional cross bars or extenders. New overhead poles may not be installed. This subsection shall apply only to lines and other facilities located or capable of being located under this ordinance within corridors established in the plan described below. All other new lines must be undergrounded at time of installation.

With input from franchisees, lessees, or other utility providers, the City shall develop a utility undergrounding plan. The plan shall provide for the undergrounding of all or a portion of aerial utility facilities located in, or required under this ordinance to be placed in, identified corridors within the City on an established schedule. Each franchisee, lessee, or applicant shall agree to participate in undergrounding its facilities along with other facilities according to the schedule identified in the plan, and shall pay its fair share of the cost of undergrounding all such utility facilities in accord with the plan. If at the time of undergrounding an insufficient number of users exist for undergrounding, as determined in the plan, each franchisee, lessee, or applicant shall at the time underground its own facilities at its own expense per the plan. At the time the plan is adopted by the City, the franchisee, lessee, or applicant shall execute a bond acceptable to the City Attorney in an amount sufficient to ensure its financial participation in the undergrounding.

In situations within corridors where overhead facilities are at capacity, including that possibly provided by cross bars or extenders, all franchisees, lessees, or applicants for right-of-way use permits shall underground its cable facilities and provide excess underground capacity for future franchisees, lessees, or applicants. The amount of such excess capacity shall be determined by the franchisee, lessee, or applicant consistent with city policy and consistent with federal or state law, and access thereto shall be on a nondiscriminatory basis to future franchisees, lessees, or applicants at a reasonable expense; provided, franchisees, lessees, and applicants may reserve the right to set aside a portion of such excess capacity for its sole use so long as a sufficient amount of capacity remains for future franchisees, lessees, or applicants.

Insofar as the law allows, all new main, trunk, or backbone cable lines proposed to run in a parallel direction to any identified corridor shall be located by franchisees, lessees, or applicants within that corridor. If locating any parallel main lines in a corridor is impractical or contrary to law, franchisee, lessee, or applicant shall underground the line and execute an agreement with the City which commits the franchisee, lessee, or applicant to participate financially equal to its fair share of the cost of undergrounding within the parallel corridor. If such an agreement shall be found unlawful, the franchisee, lessee, or applicant still must underground the parallel line. Until those corridors are identified, the entrance corridors to the City identified in the Comprehensive Plan shall constitute interim corridors.

(Ord. 5930 §1, 1999; Ord. 4624 §7.3, 1985).

5.15.430 System extension

The grantee shall extend residential and institutional service, as set forth in the franchise agreement, into every new subdivision and/or development. 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 sixty days from first occupancy or until after final grading, whichever is first. Those new areas having more dwelling units per strand-mile of plant than the number stipulated in the franchise agreement, shall receive residential service for the normal installation fee. In those areas where the number of dwelling units per strand-mile is less than the number stipulated in the franchise agreement, the grantee will provide residential cable service on a pro-rata basis, sharing the costs with the potential subscriber(s) as determined by a formulation set forth in the franchise agreement.

(Ord. 4624 §7.4, 1985).

5.15.440 Excavation in street

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 proper officials of the city, and under their supervision and direction, and shall be done in such a 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 city’s director of public works, 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 the exact locations of its facilities located within the public streets, ways and easements of the city. These maps shall be available for inspection at any time during normal business hours by city officials.

(Ord. 4624 §7.5.1. 1985).

5.15.450 Raising or lowering lines for moving of buildings

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 it, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty-eight hours’ advance notice to arrange for such temporary wire changes.

(Ord. 4624 §7.5.2, 1985).

5.15.460 Completion of street work by city

Upon any failure of the grantee to commence, pursue or complete any work required of it by law or by the provisions of a franchise to be done in any street, the council, at its option and according to law, may cause such work to be done and the grantee shall pay to the city the cost thereof in the itemized amounts reported by the council to the grantee, within thirty days after receipt of such itemized report.

(Ord. 4624 §7.6.1, 1985).

5.15.470 Removal of noncomplying facilities

In the event that any part of such system has been installed in any street or other area without complying with the material requirements hereof and/or the franchise agreement, then the grantee shall, at the option of the city, and at the expense of grantee and at no expense to the city, upon demand of the city, promptly remove from any streets or other area all property of grantee, and grantee shall promptly restore the street or other area from which such property has been removed to such condition as the director of public works approves.

(Ord. 4624 §7.6.2, 1985).

5.15.480 Changes required by public improvement

The grantee, at his expense, shall protect, support, temporarily disconnect, relocate or remove any property of the grantee when required by the council by reason of traffic conditions, public safety, street vacation, freeway or street construction; change or establishment of street grade, installation of sewers, drains, water pipes, power lines, structure 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; provided, that the grantee shall in all cases have the privileges and be under the obligations as to the abandonment of franchise property in place which are provided in Section 5.15.480.

(Ord. 4624 §7.7, 1985).

5.15.490 Abandonment of grantee property

A.    The grantee shall promptly remove from the streets all property which has been permanently discontinued or abandoned, other than that which the council may, at its sole option, permit to be abandoned in place. Property not so permitted or removed shall be deemed to be abandoned.

B.    A permit to abandon in place must be obtained from the city’s director of public works. No abandonment of the grantee’s property shall be deemed as taking of the property of the grantee, and the grantee shall be entitled to no surcharge by reason of anything under this section.

C.    Any property of the grantee which is abandoned, within the meaning of subsection A of this section, and which remains in place one hundred and twenty days after termination or expiration of the franchise, or a franchise extension under Section 5.15.320. shall be considered permanently abandoned. The city’s director of public works may extend such time in thirty-day increments not to exceed two such extensions, or a total of one hundred eighty days.

D.    Upon permanent abandonment of any franchise property in place, the grantee shall submit to the council an instrument, satisfactory to the city attorney, transferring to the city the ownership of such property.

(Ord. 4624 §7.8, 1985).

5.15.500 Service reliability

A.    Throughout the life of a grantee’s franchise, and in addition to other service regulations adopted by the 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 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 should also serve as a broad-based communications source for city government, other public facilities including hospitals, public libraries and schools, industrial and commercial business users, as provided in the franchise agreement.

B.    The grantee shall, as well, retain sufficient employees to provide safe, adequate and prompt service for all such residential subscribers, institutional facilities and business users. The grantee shall limit failures to minimum time duration by locating and correcting malfunctioning as promptly as is reasonably possible.

(Ord. 4624 §8, 1985).

5.15.510 Safety requirements

The grantee shall at all times install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the city’s building regulations, and in such a manner that they will not interfere with any installations of the city. The grantee shall 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. 4624 §9, 1985).

5.15.520 Service area

The grantee’s system design, construction, extension and/or upgrade shall be such that service shall be made available to all residential units within the grantee’s service area, as defined in the franchise agreement, for the normal installation fee, except as otherwise provided in this chapter, or in the franchise agreement.

(Ord. 4624 §10.1, 1985).

5.15.530 Establishment of service –Continuance

Subject to such regulations as may be adopted by the council, the grantee shall provide cable television service pursuant to a franchise agreement to all residents who make a timely and bona fide request for such service at any location within the service area, and who sign a subscriber agreement with the grantee. After the grantee shall have established service in any area of the city, such service shall not be suspended or abandoned unless such suspension or abandonment be authorized or ordered by the council.

(Ord. 4624 §10.2, 1985).

5.15.540 Basic system capability

System capability shall be as provided in this section, or as may be provided in a franchise agreement.

A.    A cable communications system, to be installed and operated pursuant to this chapter and a franchise granted under this chapter shall, as a minimum, be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage by the grantee as may be now or thereafter authorized by the FCC; and distribute color television signals which it received in color, and provide channel capacity and basic equipment for program production in cable casting public, educational, and government access uses.

B.    The system should have a minimum capacity of thirty, but preferably fifty or more, downstream video channels, and have two-way operational capability, the latter to be activated on a selective basis when technically and economically feasible, or as otherwise mutually agreed upon by the city and the grantee.

C.    The cable communications system(s) permitted to be installed and operated pursuant to this chapter may also engage in the business of transmitting original cable cast programming not received through television broadcast signals, and transmitting any satellite delivered signals permitted by the FCC.

D.    The system may also transmit television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers.

E.    The system may also transmit and receive all other signals: digital, voice, and audio-visual, as permitted by federal and state authorities.

(Ord. 4624 §10.3, 1985).

5.15.550 Local origination and access

The grantee shall provide and maintain local origination and access facilities and channels for the benefit of city residents as set forth in the franchise agreement.

(Ord. 4624 §10.4, 1985).

5.15.560 Municipal services

Municipal services shall be as set forth in this section, or as provided in a franchise agreement.

A.    With respect to local government access, the grantee shall provide, at the request of the council, and upon city reimbursement of the grantee’s actual production costs in excess of five hours a week, use of the grantee’s production equipment and technical services for production of live and video-taped municipal programming, subject to scheduling requirements of the grantee.

B.    With respect to basic television service, the grantee shall provide a drop and all basic subscriber services, without cost, when the system passes such facilities and as designated by the council, to public schools and community colleges within the city, and buildings owned and controlled by the city and used for public purposes and not for residential use.

(Ord. 4624 §10.5, 1985).

5.15.570 Interconnection

The grantee may be required to provide interconnection to systems serving residential areas in the unincorporated area adjacent to the city. This and other possible system interconnections will be provided by the grantee as set forth in the franchise agreement.

(Ord. 4624 §10.6. 1985).

5.15.580 Emergency service

Emergency service shall be provided as set forth in this section, or as otherwise set forth in a franchise agreement.

A.    The grantee may be required to design, construct and maintain the system in a manner to provide for a restricted audio and/or video override of all audio channels during emergencies. If an override capability is stipulated in the franchise agreement, the system shall include a squeal alert tone to precede the verbal and/or video messages. If a video override capability is provided, the system shall include a character generator for delivery of emergency messages to the hearing impaired.

B.    Emergency power sources shall be provided 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. 4624 §10.7, 1985).

5.15.590 Subscriber service terms

A.    It is the right of all subscribers to receive all available services insofar as their financial and other contractual 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.    Subject to such regulations as may be adopted by the council pursuant hereto, the grantee shall maintain a conveniently located business office and service center within the corporate limits of Olympia-Lacey-Tumwater with published local telephone numbers so that subscribers may report service outages or deficiencies at any time. The office shall maintain an adequate staff such that subscribers may transact all necessary business, including payment of bills, during regular business hours. The grantee’s employees shall maintain a high standard of courtesy in customer relations at all times.

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

Subscriber is hereby notified that in providing cable television/communications service the Grantee is making use of public right-of-ways within the City of Olympia and that the continued use of such right-of-ways is in no way guaranteed. In the event the continued use of such right-of-ways 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 he 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.

D.    There shall be no charges for service calls to subscriber’s residences, except as provided by the franchise agreement.

(Ord. 4624 §10.8, 1985).

5.15.600 Subscriber privacy

The grantee and the city shall at all times comply with the subscriber privacy provisions of the Cable Act Section 631, or other related provisions of law.

(Ord. 4624 §10.9, 1985).

5.15.610 Rates and charges –Federal and state preemption

To the extent permitted by federal and/or state laws and regulations and by any franchise agreement, the procedures set forth in Section 5.15.620 shall apply to the setting of rates and charges associated with the providing of services under this chapter and any franchise issued under this chapter.

(Ord. 4624 §11.1, 1985).

5.15.620 Rates and charges –Changes

A.    The grantee shall provide its subscribers and users rates and charges as set forth in the franchise agreement, and no change in rates and charges may be made without the prior approval of the council expressed by resolution as an integral part of the franchise agreement. Petitions for changes in rates and charges shall be reviewed and acted upon by the council in accordance with the provisions of this section and will not be unreasonably denied.

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

C.    Council determination of proper rates and charges shall be based on factors, which shall include, but are not limited to: the quality of signal and service delivered to subscribers, channel capacity, number and quality of programming sources, and the underlying economics of the system (system cash flow, grantee return on investment, etc.) for the grantee’s Olympia system and interconnected system, if other areas besides the city are served by the same head end/ hub.

D.    In connection with any proposed increase in 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 sixty days from date of receipt of petition. The notice of public hearing on the matter should be published at least ten days before the date of the hearing in a newspaper of general circulation within the city.

E.    Following the close of such hearing, the representative shall prepare and file with the council a record and report of the hearing, his recommendations to the council, and reasons therefor. After receipt of the representative’s report, the council shall determine whether to adopt the report or hold a further hearing. If the council elects to adopt the recommendations of the representative, it shall do so by resolution describing and stating the proposed change in rates or charges.

(Ord. 4624 §11.2, 1985).

5.15.630 Rates and charges –Standards

No rate established shall afford any undue preference or advantage among subscribers, but separate rates may be established for separate classes of service or, from time to time, for promotional purposes. Installation charges may reflect the increased cost of providing service to isolated or sparsely populated areas, as provided in this chapter or in any franchise agreement.

(Ord. 4624 §11.3, 1985).

5.15.640 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, an annual franchise fee equivalent to a percentage, as stipulated in the franchise agreement, of the grantee’s gross revenues including, but not limited to, basic service revenues, nonbasic service revenues, advertising revenues, lease revenues, and all other one-way and two-way service revenues generated in any manner by the grantee, for the purpose of defraying administrative expenses associated with the conduct and performance of the city’s responsibilities in the promotion of safety, convenience, comfort, prosperity, and general welfare of its citizens, for promotion, development, operation and maintenance of cable-related matters as the council deems appropriate within the city, and in consideration of the city’s granting and the grantee’s exercising a franchise to use the streets, as defined in Section 5.15.020.

B.    The percentage payments shall be made in the manner, amounts and at times directed in the franchise agreement, consistent with applicable provisions of state and federal law.

C.    Each such payment shall be accompanied by a statement, in duplicate, verified by the grantee or by a general officer or other duly authorized representative of the grantee, showing in such form and details as the council may require from time to time the facts material to a determination of the amount due.

D.    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 costs of such audits shall be borne by the grantee if the audit results in increasing, by more than two percent, the grantee’s annual payment to the city.

E.    No acceptance of any payment shall be construed as release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this chapter, or the franchise agreement or associated resolution or ordinance, for the performance of any obligation thereunder.

F.    The payment to the city by the grantee pursuant to this section for any calendar year shall be in lieu of any license fee or business tax, prescribed by the city for the same period, but only to the extent of such payment.

(Ord. 4624 §12.1, 1985).

5.15.650 Insurance required

Except as otherwise provided in a franchise agreement, the grantee shall at all times maintain in full force and effect a policy of insurance in such form as the city may reasonably require, executed by an insurance company authorized to write the required insurance and approved by the Insurance Commissioner of the state, insuring the payment of any sums which the grantee, or city, its officers, boards, commissioners, agents, and employees may become obligated to pay by reason of any liability imposed upon them by law for damages because of bodily injury or death, or injury to or destruction of property that may result to any person or property arising out of the grantee’s construction, operation or maintenance of any facilities pursuant to a franchise issued under this chapter. The sums, payment of which shall be so insured, shall not be less than two million dollars combined single limits including bodily injury liability and property damage liability. Such policy of insurance shall contain a provision that a written notice of cancellation or reduction in coverage of the policy shall be delivered to the city ten days in advance of the effective date thereof; if such insurance is provided by a policy which also covers the grantee or another entity or person other than those named in this section, then such policy shall contain the standard cross-liability endorsement. A certificate of insurance acceptable to the city shall be filed with the city clerk.

(Ord. 4624 §12.2, 1985).

5.15.660 Worker’s compensation

Upon being granted a franchise, and upon filing of the acceptance required under Section 5.15.280 or in a franchise agreement, the grantee shall file with the city clerk and shall thereafter, during the entire term of such franchise, maintain in full force and effect worker’s 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 grantee, obtain, at the grantee’s sole expense, such coverage, or exercise its other remedies under a franchise agreement.

(Ord. 4624 §12.3, 1985).

5.15.670 Bond

A.    Except as otherwise provided in a franchise agreement, the grantee shall, at his sole expense, at the time of acceptance of a franchise, file with the city, and unless otherwise authorized by the council, at all times thereafter maintain in full force and effect, an acceptable corporate surety bond, in duplicate, in the amount of one hundred thousand dollars, effective for the entire term of the franchise, and conditioned that in the event the grantee fails to comply with any one or more of the provisions of a franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond, any damages suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of property, as prescribed by Sections 5.15.490 or 5.15.640, which may be in default, up to the full amount of the bond. The condition shall be a continuing obligation for the duration of a franchise and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of a franchise by the grantee or from its exercise of any privilege granted in this chapter.

B.    Neither the provisions of this section, any bond accepted by the city pursuant to this section, nor any damages recovered by the city under this section shall be construed to excuse faithful performance by the grantee or to limit liability of the grantee under a franchise or for damages, either to the full amount of the bond or otherwise, except as otherwise provided in this chapter or in a franchise agreement.

C.    If, at any time during the term of the franchise, the condition of the corporate surety shall change in such a manner as to render the bond unsatisfactory to the city, the grantee shall replace such bond by a bond of like amount and similarly conditioned, issued by a corporate surety satisfactory to the city. In the event the grantee’s obligations under a franchise shall so warrant, the council, from time to time, may authorize or require appropriate and reasonable adjustments in the amount of the bond. For example, the amount of the bond may be reduced by the grantee, with the prior approval of the council, at satisfactory completion of system construction, upgrade, and/or extension, as may be set forth in the franchise agreement.

(Ord. 4624 §12.4, 1985).

5.15.680 Security fund

The city may in the franchise agreement require the establishment by the grantee of an insured account in reasonable amount, taking into consideration the experience and financial status of the grantee and security provided the city in the form of performance bonds, insurance, and indemnification, as security for the faithful performance by the grantee of all the 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 franchise, and the payment by the grantee of any claims, liens, payments and taxes due the city which arise by reason of the construction, operation or maintenance of the system. The security fund, if required, should be administered in the following manner:

A.    Within thirty days after the effective date of the franchise, the grantee shall deposit into an insured account, established by the city, and maintain on deposit throughout the term of the franchise, an amount of dollars as set forth in the franchise agreement, for the purpose set forth in this section. The grantee shall have the right to earn interest on funds deposited in the security fund. The city’s duties in administering the fund shall be that of a fiduciary.

B.    Within thirty days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.

C.    If the grantee fails after thirty days notice to pay the city any taxes or payments due and unpaid; or, fails to repay to the city, within such thirty 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 a franchise; or fail after thirty days’ notice by the city of such failure to comply with any provision of the franchise which the city reasonably determines can be remedied by an expenditure of the security, the city may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the city shall notify the grantee of the amount and date thereof.

D.    The security fund deposited pursuant to this section shall become the property of the city in the event that a franchise is cancelled by reason of the default of the grantee or revoked for cause, but only to the extent such default or revocation for cause has caused damage to the city. The grantee, however, shall be entitled to the return of the remainder of such security fund, if any, in any event; or such portion thereof, as remains on deposit at the expiration of the term of the franchise, or upon termination of the franchise at an earlier date, provided that there is then no outstanding default on the part of the grantee.

E.    The city may, at its sole discretion, upon the grantee’s successful completion of system construction, reduce the security fund to a lesser required amount as set forth in the franchise agreement, and refund the difference to the grantee.

F.    The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by a franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the city may have.

(Ord. 4624 §12.5, 1985).

5.15.690 Indemnification to city

A.    By accepting a franchise, the grantee shall be deemed to have agreed to indemnify and hold harmless the city, its officers, boards, commissions, and/or employees against and from all claims, demands, causes of 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 consent 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 arising out of the grantee’s construction, operation or maintenance of a cable television system within the city, 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 any loss, cost and expense resulting or arising out of any of the same, and including any reasonable attorney’s fees and costs, irrespective of the amount of the bond designated in Section 5.16.670; provided, that the grantee shall not be deemed to have agreed to indemnify the city for claims arising from the city’s own actions, or actions other than those of the grantee.

B.    The grantee shall at the sole risk and expense of the grantee, upon demand of the city, made by and through the city attorney, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise brought or instituted or had by third persons or duly constituted authorities, against or affecting the city, its officers, boards, commissions, or employees, and arising out of or pertaining to the grantee’s actions in the exercise of the enjoyment of such franchise. The grantee shall not, however, be required to assume the obligations of this section as to actions resulting from the city’s own action, or actions other than those of the grantee.

(Ord. 4624 §12.6, 1985).

5.15.700 Examination of property

At all reasonable times, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the city, and to examine and transcribe any and all maps and other public records kept or maintained by the grantee or under its control which deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the city, the grantee shall, upon reasonable request by the city, transport them to the city for examination.

(Ord. 4624 §13.1, 1985).

5.15.710 Reports, records and plans

A.    The grantee shall prepare and furnish to the city manager and the city clerk at the times and in the form prescribed by either of said officers, such reports with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the city or any of its officers in connection with the franchise.

B.    The grantee shall at all times make and keep in the city full and complete plans and records showing the exact location of all cable communications system equipment installed or in use in the streets and other public places in the city. The grantee shall file with the city’s director of public works, on or before the last day of June of each year, a current map, set of maps, or amendments to maps previously furnished drawn approximately to scale, showing all cable communications system equipment installed and in place in streets and other public places in the city.

(Ord. 4624 §13.2, 1985).

5.15.720 Adoption of rules and regulations

At any time, the council may, as necessary, adopt rules, regulations and standards governing the operation of cable communications systems in the city, consistent with the provisions of this title and the franchise agreement. Such rules, regulations and standards may apply to and govern the operations of the grantee of any cable communications franchise. Prior to adopting any such rule, regulation, or standard, the council shall conduct a duly noticed hearing thereon. At the time set for such hearing, the council, by resolution, may adopt, amend, reject or modify such rules and regulations. The standards adopted may govern engineering, construction, installation, service, technical performance, maintenance and performance testing of cable communications systems in the city.

(Ord. 4624 §14, 1985).

5.15.730 Amendment of chapter and franchise

The council may amend this chapter upon its own motion and may amend a franchise agreement upon the agreement of a grantee whenever amendment is necessary to enable the grantee to utilize new developments in cable communications, 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, or for other mutually agreed reasons. 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 public hearing, and no amendment substantially amending the existing rights and obligations of the grantee under a franchise agreement shall be adopted without the grantee’s consent.

(Ord. 4624 §15, 1985).

5.15.740 Notices

Every direction, notice or order to be served upon a grantee shall be hand delivered or sent by certified mail to the local office described in Section 5.15.590(B). Every notice to be served upon the city shall be hand delivered, or sent by certified mail, to the City Clerk at: City Hall, City of Olympia, 900 Plum Street S.E., Olympia, Washington, 98507. The delivery of such shall be deemed to have been at time of receipt.

(Ord. 4624 §19, 1985).

5.15.750 Violations –Designated

A.    Unlawful Operation. Except as otherwise permitted by state or federal law, it is 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 rights-of-way but is designated as proposed rights-of-way on any tentative subdivision map approved by the city, 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.    Unlawful Connections. It is unlawful for any person, firm or corporation to engage in tapping, or to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise with any part of any cable communications system within the boundaries of the city for the purpose of enabling himself/herself 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 the system.

C.    Unlawful Tampering. It is 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 device.

(Ord. 4624 §16, 1985).

5.15.760 Violation –Fines and penalties

The city may levy fines and other penalties for failure to comply with the provisions of this chapter and the franchise agreement, not to exceed those limits set forth in the franchise agreement.

(Ord. 4624 §17, 1985).