Chapter 5-17 CABLE COMMUNICATION SYSTEMS

ACCESS CHANNELS: Free composite channels to be used for educational purposes and by government and public agencies and/or their representatives (commonly referred to as “PEG” channels).

ACT: The Cable Television Consumer Protection and Competition Act of 1992, and any subsequent amendments.

ADDRESSABILITY: The ability of a system allowing a franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming.

AFFILIATE: A condition of being united, being in close connection, allied or attached as a member or branch.

APPLICANT: Any person or entity that applies for a franchise.

BASIC CABLE: The tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.

CABLE SERVICES:

A. The one-way transmission to subscriber of video programming or other programming service, and

B. Subscriber interaction, if any, which is required for the selection by the subscriber of such video programming or other programming service.

CHANNEL: A single path or section of the spectrum which carries a television signal.

CHARACTER GENERATOR: A device used to generate alpha numerical programming to be cablecast on a cable channel.

CITY: The City of Renton, a municipal corporation of the State of Washington.

CABLE SYSTEM: A facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service and other service to subscribers.

COUNCIL: The present governing body of the City or any future board constituting the legislative body of the City.

DATA COMMUNICATION:

A. The movement of encoded information by means of electrical or electronic transmission systems;

B. The transmission of data from one point to another over communications channels.

DWELLING UNITS: Residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks and other multi-family residential units.

FCC: The Federal Communications Commission, a regulatory agency of the United States government.

FRANCHISE: The initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.

FRANCHISEE: The person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the Council under this Chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in City ordinance.

GROSS REVENUES: For purposes of franchise fee calculations, all revenue received by the franchisee or its affiliates, as defined in the Federal Cable Act, in whatever form and from all sources, derived from the operation of the franchisee’s cable system to provide cable services, including any revenue received by the franchisee from any use of any component of the cable system for any purpose by the operator or by others. Gross revenues shall include, without limitation, revenue received from: (1) cable services; (2) converter and equipment rentals; (3) advertising; (4) installations; (5) sales occurring as a result of home shopping or similar programming; (6) leased channels; (7) sales of programming guides; (8) franchise fees; and (9) fees, payments or other consideration paid by programmers and commissions on advertising accounted for in accordance with generally accepted accounting principles (GAAP). Gross revenues shall not include revenues received from telecommunications services or revenues received by third parties unless such revenues are of a type normally received by the franchisee prior to the date of the franchise or would normally be received by a cable operator similarly situated in the ordinary course of business as compensation for use of the cable system. Gross revenues shall be determined without deduction for (1) any operating expense; (2) any accrual; or (3) any other expenditure, regardless of whether such expense, accrual or expenditure reflects a cash payment, and revenue shall be counted only once in determining gross revenues. Gross revenues shall not include funds that the franchisee is legally obligated to collect as sales or similar taxes imposed directly on subscribers. This definition shall be construed so as to include all gross revenues to the maximum extent permitted by Federal and State law, except to the extent specifically excluded in this section, and encompasses revenues that may develop in the future, whether or not anticipated. If a statutory change in State or Federal law or a decision of the FCC or a court of competent jurisdiction expands the categories of revenue available to the City for the franchise fee assessment beyond those permitted under this definition as of the effective date, that change shall automatically be included in the definition of gross revenues under the franchise; provided, that the City imposes the same requirement upon any other similarly situated multichannel video provider over which the City has jurisdiction and authority to impose such fees. (Amd. Ord. 5409, 9-15-08)

HEADEND: The electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

HIGH DEFINITION TELEVISION (HDTV): A television system that will provide sharper picture definition than the current U.S. Standards, five hundred twenty five (525) lines per frame.

INSERTION POINT(S): Location(s) where institutional programming can be initiated for distribution throughout the secured portion of the subscriber network.

INSTALLATION: The connection of the system from feeder cable to subscribers’ terminals.

INSTITUTIONAL SERVICES: A cable communications system designated principally for the provision of nonentertainment services to schools, public agencies or other nonprofit agencies, separate and distinct from the subscriber network, or on secured channels of the subscriber network.

INTERACTIVE SERVICES: Services provided to subscribers where the subscriber either:

A. Both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or

B. Transmits signals to any other location for any purpose.

NCTA: The National Cable Television Association.

OFFICE: The person or entity designated by the City as being responsible for the administration of a franchise for the City.

OPERATOR: The person, firm or corporation to whom a franchise is granted pursuant to the provisions of this Chapter.

PREMIUM SERVICES: Programming over and above those provided by basic services for which there is additional charge.

PROPERTY OF FRANCHISEE: All property owned, installed or used by a franchisee in the conduct of its business in the City under the authority of a franchise granted pursuant to this Chapter.

PROPOSAL: The response, by an individual or organization, to a request by the City regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the City.

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

SUBSCRIBER: A person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission. (Ord. 4413, 8-9-93)

5-17-2 TERMS OF FRANCHISE:

A. Authority to Grant Franchises or Licenses for Cable Television: It shall be unlawful to engage in or commence construction, operation or maintenance of a cable communications system without a franchise issued under this Chapter. The Council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable communications system which complies with the terms and conditions of this Chapter.

Any franchise granted pursuant to this Chapter shall be nonexclusive and shall not preclude the City from granting other or further franchises or permits or preclude the City from using any roads, rights-of-way, streets, or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the City to make such changes, as the City shall deem necessary, including the dedication, establishment, maintenance and improvement of all new rights-of-way and thoroughfares and other public properties. However, any such changes shall not materially or substantially impair the rights granted a franchisee pursuant to this Chapter. All franchises granted subsequent to the effective date of this Master Cable Ordinance shall be granted consistent with the terms and conditions of this Chapter.

B. Incorporation by Reference: The provisions of this Chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder. The provisions of any proposal submitted and accepted by the City shall be incorporated by reference in the applicable franchise. However, in the event of any conflict between the proposal, this Chapter and the franchise, the franchise shall be the prevailing document.

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

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

2. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate and provide similar facilities, or properties rented or leased from other persons, including but not limited to any public utility or other franchisee franchised or permitted to do business in the City. No privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

D. Term of Franchise: The City shall have the right to grant a franchise for a period of time most appropriate to the circumstances of the particular grant. (Ord. 4413, 8-9-93)

5-17-3 APPLICATION:

An applicant for an initial franchise to construct, operate and maintain a cable communications system within the City shall file an application in a form prescribed by the City, accompanied by a nonrefundable filing fee in the amount to be determined by the City. (Ord. 4413, 8-9-93)

5-17-4 HEARING:

Prior to the granting of a franchise, the City Council shall conduct a public hearing to determine the following:

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

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

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

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

E. That the applicant is capable of complying with all relevant Federal, State and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise;

F. The capacity of public rights-of-way to accommodate the cable system;

G. The present and future use of the public rights-of-way to be used by the cable system; and

H. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public. (Ord. 4413, 8-9-93)

5-17-5 ACCEPTANCE:

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

B. Within sixty (60) days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the Council in its discretion may authorize, a franchisee shall file with the City Clerk its written acceptance of the franchise, in a form satisfactory to the City Attorney, together with the bond and insurance policies required by Sections 5-17-36, “Insurance” and 5-17-37, “Performance Bond”, herein. (Ord. 4413, 8-9-93)

5-17-6 POLICE POWERS:

In accepting any franchise, a franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the City pursuant to such power so long as such regulations do not materially increase the burden or impair the rights of the franchisee hereunder. (Ord. 4413, 8-9-93)

5-17-7 RULES AND REGULATIONS BY THE CITY:

A. In addition to the inherent powers of the City to regulate and control any franchise it issues, the authority granted to it by the Act, and those powers expressly reserved by the City, or agreed to and provided for in a franchise, the right and power is hereby reserved by the City to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers.

B. The City Council reserves the right to delegate its authority for franchise administration to a designated agent.

C. The City does hereby adopt, by reference, as part of its system of regulations for administering the basic cable service, those regulations in chapter 42 USC Section 543(b), one copy of which is on file with the City Clerk’s office and available for public inspection. (Ord. 4425, 11-8-93)

5-17-8 TECHNICAL STANDARDS:

A. Compliance Required: Subject to Federal, State and local law, a franchisee shall comply with FCC rules, part 76, subpart K, section 76.601 through 76.610 as amended, hereafter, and, at the minimum, the following:

1. Applicable City, County, State and national/Federal codes and ordinances;

2. Applicable utility joint attachment practices;

3. The National Electric Safety Code; ANSI C2;

4. Local utility code requirements;

5. Local rights-of-way procedures;

B. Preventive Maintenance: A comprehensive routine preventive maintenance program shall be developed, effected and maintained to ensure continued top quality cable communications operating standards in conformance with FCC Regulations part 76, or as may be amended;

C. Technical Audit: Each franchisee shall annually provide to the City a certification signed by its vice president of engineering for the State of Washington, or other senior engineer as agreed upon by the City, certifying that its policies and procedures comply with all applicable laws and codes and that all known maintenance issues have been repaired in compliance therewith. (Ord. 4413, 8-9-93; amd. Ord. 5409, 9-15-08)

5-17-9 PARENTAL CONTROL DEVICES:

A franchisee will make available at its cost, including applicable handling fees, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. (Ord. 4413, 8-9-93)

5-17-10 CONSTRUCTION STANDARDS:

All facilities constructed under this Chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code (See Title IV, Chapter 25 of this Code), codes of the State, and City Code Chapters 9-10, 4-23 and other regulations pertaining to such construction. A franchisee is required in all cases to request and apply for all construction variances for system extension, subscriber installations, or any other variances that may be required by the City. (Ord. 4413, 8-9-93)

5-17-11 CONSTRUCTION NOTIFICATION:

A construction permit shall be required prior to any construction within public ways, which shall include an approval/inspection fee per City Code Section 9-10-3C. Upon application for each construction permit a franchisee will submit to City its plan for advance notification for the proposed construction project. In the event that an emergency situation arises which precludes such advance notification, a franchisee shall subsequently inform the City of the nature of the extraordinary event and the action taken. (Ord. 4413, 8-9-93)

5-17-12 UNDERGROUNDING AND LANDSCAPING:

A franchisee shall fully comply with City Code Chapter 4-23 pertaining to the underground installation of utility lines and the use of joint trenches with other utilities where feasible. In those areas and portions of the City where the transmission or distribution facilities of the public utility providing telephone service or those of the facility providing electric service are under ground or hereafter may be placed underground, then a franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities in the same area underground. All activities shall be conducted in coordination with other utilities but not necessarily in the same trench. Amplifiers and associated equipment in a franchisee’s transmission and distribution lines may be in appropriate housing upon the surface of the ground.

Where undergrounding is required as a result of a City street improvement project, the City shall provide trenching for underground installation of cable. (Ord. 4413, 8-9-93)

5-17-13 CONSTRUCTION IN RIGHT-OF-WAY:

Whenever, in the sole opinion of the City, any of a franchisee’s facilities or equipment need to be relocated or altered due to a construction or repair project by the City in a public way, a franchisee shall move or relocate said facilities or equipment within thirty (30) days from receiving written notice from the City. However, in the event such relocation is required due to emergency repairs deemed necessary by the City, such relocation or moving shall be accomplished within twenty four (24) hours. Any relocation or alteration of a franchisee’s facilities or equipment required under this Section shall be at the sole expense of a franchisee. (Ord. 4413, 8-9-93)

5-17-14 SAFETY REQUIREMENTS:

A. A franchisee, in accordance with applicable national, State, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.

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

C. The City reserves the general right to see that the system of a franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with a franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from a franchisee. (Ord. 4413, 8-9-93)

5-17-15 BUILDING MOVING:

Whenever any person shall have obtained permission from the City to use any street for the purpose of moving any building, a franchisee, upon seven (7) days’ written notice from the City, shall raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with regulations and general ordinances of the City. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference. In such event, the

City shall be responsible for determining the path of least interference. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of a franchisee. (Ord. 4413, 8-9-93)

5-17-16 TREE TRIMMING:

Upon approval of the Director of Public Works or, where appropriate, the Director of Parks and Recreation, a franchisee shall have the authority to trim trees upon and overhanging streets, public ways and public places in the franchise area so as to prevent the branches of such trees from coming into contact with a franchisee’s wires and cables, and, if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities. Failure to remove debris after a reasonable time shall result in the debris being removed by the City and the costs involved charged to the franchisee. (Ord. 4413, 8-9-93)

5-17-17 RATES:

A. Schedule of Rates on File: Within sixty (60) days after the grant of any franchise hereunder, a franchisee shall file with the City a complete schedule of all rates to be charged to all subscribers.

B. Change in Rates or Charges: Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, the franchisee shall provide the City and all subscribers a minimum of thirty (30) days prior written notice of such change.

C. City Regulation: Subject to Federal, State and local law, the City may regulate the approval of increases of rates or charges for providing cable service and prescribe reasonable rate approval procedures.

As part of any City proceedings concerning rate regulation, the City will accept comments from any interested party, in writing, and the City Council will schedule a public hearing on such rate regulation before the City Council or a subcommittee of the City Council, or may delegate the responsibility of conducting that public hearing to the Hearing Examiner or to a designated hearing agent. (Ord. 4425, 11-8-93)

5-17-18 DISCOUNTS:

A franchisee shall offer a discount of thirty percent (30%) from the normal charge for basic services and installation to those individuals age sixty two (62) or older or disabled who are the legal owner or lessee/tenant of their residence; provided, that their combined disposable income from all sources does not exceed the Housing and Urban Development (HUD) standards for the Seattle-Everett area for the preceding calendar year.

The City or its designee shall be responsible for certifying to a franchisee that such applicants conform to the specified criteria. (Ord. 4413, 8-9-93)

5-17-19 CUSTOMER SERVICE:

A. A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A log of all service interruptions shall be maintained for at least a period of one year. The City, after two (2) working days’ notice, may inspect such logs.

B. An employee of a franchisee shall answer and respond to all individual complaints received no later than five o’clock (5:00) P.M. weekdays. A franchisee may use an answering service to receive complaints after five o’clock (5:00) P.M. weekdays and on weekends and holidays and will respond to any system outage affecting more than five (5) subscribers. A copy of the instructions to the answering service by a franchisee shall be furnished to the City or its designee.

C. A technician shall be on call seven (7) days a week, twenty four (24) hours a day. A franchisee shall respond immediately to service complaints in an efficient manner.

D. A franchisee shall maintain a sufficient repair force to respond to individual requests for repair service within two (2) working days after receipt of the complaint or request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven (7) days, to the extent reasonable. If a subscriber has notified a franchisee of an outage, no charge for the period of the outage shall be made to the subscriber if the subscriber was without service for a period exceeding twenty four (24) hours, unless the outage was due to acts of God, force majeure or circumstances reasonably beyond a franchisee’s ability to control.

E. A franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address and telephone number of the City official or his/her designee, to whom system subscribers may direct their concerns.

F. In no case will a franchisee’s service standards fall below the standards established by the National Cable Television Association (NCTA) which are incorporated herein by reference and made a part of this Chapter¹ or any FCC regulation. (Ord. 4413, 8-9-93)

5-17-20 TELEPHONE RESPONSE:

A. Response Time: A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the City.

B. Customer Relations Summary: In order that the City may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the City, and routinely no less than quarterly, provide the City with a summary that will provide, at a minimum, the following:

1. Total number of calls received in a reporting period;

2. Time taken to answer;

3. Average talk time;

4. Number of calls abandoned by the caller;

5. Average hold time;

6. Percentage of time all lines busy;

7. An explanation of any abnormalities.

This data will be compared to minimum standards of the NCTA being incorporated herein by reference, or any amendment thereto, increasing such NCTA standards, and shall be monitored by the City.

Calls for service generated during period of system outages due to emergency affecting more than twenty five (25) customers may be excluded from the service response calculations. The City shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations. (Ord. 4413, 8-9-93)

5-17-21 FAILURE TO IMPROVE CUSTOMER SERVICE:

A. Improvement of Deficiencies: The City or its designee shall review telephone response and customer service information with a franchisee. It will be assumed that improvements will be made by the franchisee in the appropriate categories which were found deficient in Sections 5-17-19, “Customer Service”, and 5-17-20, “Telephone Response”, of this Chapter, from the last reporting period. Failure to do so may result in the calling of a public hearing by the City Council for the purpose of examining the reasons, if any, why such improvements were not achieved by a franchisee.

B. Hearing: An unsatisfactory record will result in the hearings being made part of an exhibit under section 626(c)(1)(A) and (B) of the Act alleging that such practices have failed to conform with future refranchising requirements as stated therein. In addition a franchisee’s corporate office shall be advised of the City’s findings. (Ord. 4413, 8-9-93)

5-17-22 FRANCHISE FEE:

Recognizing that current Federal law limits a franchise fee to five percent (5%), a franchisee shall pay to the City quarterly, on or before January 30, April 30, July 30 and October 30, a sum equal to five percent (5%) of gross revenues as defined herein for the preceding three (3) months. Such remittances shall be accompanied by forms furnished by the City to report detailed information as to the sources of such income. (Ord. 4413, 8-9-93)

5-17-23 CABLE SYSTEM EVALUATION:

A. Evaluation Sessions: In addition to periodic meetings, the City may require reasonable evaluation sessions at any time during the term of a franchise.

1. It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under and compliance with the terms of a franchise.

2. During an evaluation session, a franchisee shall fully cooperate with the City and shall provide without cost such reasonable information and documents as the City may request to perform evaluations.

B. Independent Consultation: If the City has concerns because of uncorrected reoccurring problems with the franchisee’s cable system, it may retain an independent consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the City. The City shall take into consideration any efforts taken to correct such deficiencies. The report prepared by the consultant in response to the City’s request for a system evaluation shall include:

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

2. What cable system components were tested;

3. The equipment used and procedures employed in testing;

4. The method, if any, by which specific performance problems may be resolved;

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

If the tests indicate that the system is not in compliance with FCC standards or the requirements of the franchise, a franchisee shall reimburse the City for any costs involved in conducting such tests, such as consultant fees or other expenses. Such fees or expenses shall not exceed two thousand five hundred dollars ($2,500.00) for each evaluation. (Ord. 4413, 8-9-93)

5-17-24 PERIODIC MEETINGS:

Upon request, a franchisee shall meet with designated City officials and/or designated representative(s) to review the performance of a franchisee for the preceding period. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests. (Ord. 4413, 8-9-93)

5-17-25 RECORD INSPECTION:

Subject to statutory and constitutional limits and two (2) working days’ advance notice, the City reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments at any time during normal business hours; provided, that the City shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records within the context of section 631 of the Act, and plans pertaining to a franchisee’s operation in the City. (Ord. 4413, 8-9-93)

5-17-26 REPORTS:

A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include:

A. Annual Report: Most recent annual report.

B. SEC Requirements: A copy of the 10-K Report, if required by the Securities and Exchange Commission.

C. Number of Homes: The number of homes passed.

D. Basic Services: The number of subscribers with basic services.

E. Premium Services: The number of subscribers with premium services.

F. Number of Hook-Ups: The number of hook-ups in period.

G. Disconnects: The number of disconnects in period.

H. Miles of Cable: Total number of miles of cable in City.

I. Summary of Complaints: Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution.

J. Billing Practices: A statement of its current billing practices, and a sample copy of the bill format.

K. Subscriber Service Contract: A current copy of its subscriber service contract.

L. Report on Operations: Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 4413, 8-9-93)

5-17-27 PROGRAMMING:

For informational purposes a franchisee shall file a listing of its programming and the tiers in which they are placed. A franchisee shall consider the City’s suggestions of general program categories as determined from time to time in residential questionnaire polls. The results of initial such surveys will be appended to the respective franchise ordinances. (Ord. 4413, 8-9-93)

5-17-28 NONDISCRIMINATION:

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

A franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 4413, 8-9-93)

5-17-29 CONTINUITY OF SERVICE:

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

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

B. In the event a franchisee fails to operate a system for seventy two (72) continuous and consecutive hours without prior notification to and approval of the City Council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond a franchisee’s control, the City may, after notice and an opportunity for a franchisee to commence operations at its option, operate the system or designate someone to operate the system until such time as a franchisee restores service to conditions acceptable to the City Council or a replacement franchisee is selected. If the City is required to fulfill this obligation for a franchisee, a franchisee shall reimburse the City for all reasonable costs or damages in excess of revenues from the system received by the City that are the result of a franchisee’s failure to perform. (Ord. 4413, 8-9-93)

5-17-30 FRANCHISE RENEWAL:

The provisions of section 626 of the Act or other applicable Federal or State law will govern the actions of the City and a franchisee in proceedings relating to franchise renewal. The City expressly reserves the right to establish guidelines and monitoring systems in accordance with the provisions of the Act to measure the effectiveness of a franchisee’s performance during the term of such franchise. (Ord. 4413, 8-9-93)

5-17-31 TRANSFER OF OWNERSHIP:

A. Franchising Authority’s Consent Required: A franchisee’s right, title, or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an affiliate, without the prior consent of the franchising authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by other hypothecation or by assignment of any rights, title or interest of the franchisee in the franchise or cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes; provided, that the collateral does not specifically affect the assets of this franchise, or if the said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

B. Compliance Required: In any transfer of a franchise requiring City approval, the applicant must show technical ability, financial capability, legal and general qualifications as determined by the City. Applicant must agree to comply with all provisions of the franchise. Costs associated with the transfer process shall be reimbursed to the City.

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

D. Notification to City: Regardless of the circumstances, a franchisee shall promptly notify the City prior to any proposed change, transfer, or acquisition by any other party of a franchisee’s company. In the event that the City adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the franchise. (Ord. 4413, 8-9-93)

5-17-32 REMOVAL AND ABANDONMENT OF PROPERTY OF FRANCHISEE:

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

B. Abandonment; Removal of Property; Restoration: In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of twelve (12) months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchise or other City ordinances or the franchise has been terminated, canceled or has expired, a franchisee shall promptly, upon being given ten (10) days’ notice, remove within ninety (90) days from the streets or public places all such property and poles of such system other than any which the City may permit to be abandoned in place. In the event of such removal, a franchisee shall promptly restore the street or other areas in accordance with local regulations and standards from which such property has been removed to a condition similar to that existing before such removal and satisfactory to the City. Such approval shall not be unduly withheld.

C. Extension of Time: Any property of a franchisee remaining in place ninety (90) days after the termination or expiration of the franchise shall be considered permanently abandoned. The City may extend such time not to exceed an additional ninety (90) days.

D. Property; Transfer of Ownership: Any property of a franchisee to be abandoned in place shall be abandoned in such manner as the City shall prescribe. Upon permanent abandonment of the property of a franchisee in place, the property shall become that of the City, and a franchisee shall submit to the City Clerk an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under State or Federal law. In the event the City and a franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this Section either party may invoke arbitration to resolve such question. (Ord. 4413, 8-9-93)

5-17-33 REVOCATION FOR CAUSE:

A. Default; Plan of Action: If a franchisee wilfully violates or fails to comply with any of the material provisions of this franchise, the City shall give written notice to a franchisee of the alleged noncompliance of its franchise. A franchisee shall have forty five (45) days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within forty five (45) days, to present to the City a plan of action whereby such default can be promptly cured.

B. Revocation; Recovery of Costs: If such default continues beyond the applicable dates agreed to for such cure, the City shall give a franchisee written notice that all rights conferred under this Chapter and its franchise may be revoked or terminated by the Council after a public hearing. A franchisee shall be entitled to not less than thirty (30) days’ prior notice of the date, time and place of the public hearing. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling a franchisee to comply with the provisions of the franchise and recover damages and costs incurred by the City by reason of a franchisee’s failure to comply. (Ord. 4413, 8-9-93)

5-17-34 EFFECT OF TERMINATION FOR NONCOMPLIANCE:

Subject to State and Federal law, if any franchise is terminated by the City by reason of a franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property, shall, at the election of the City, become the property of the City at a cost consistent with the provisions of section 627(b)(1) of the Act. If the City, or a third party, does not purchase the system, a franchisee shall, upon order of the City Council, remove the system as required under Section 5-17-32, Removal and Abandonment of Property of Franchisee, of this Chapter. (Ord. 4413, 8-9-93)

5-17-35 INDEMNIFY AND HOLD HARMLESS:

A franchisee will indemnify and hold harmless the City from any and all liabilities, fees, costs and damages, except in the case of judicially determined gross negligence and/or wilful misconduct of the City, whether to person or property, or expense of any type or nature which may occur to the City by reason of the construction, operation, maintenance, repair and alteration of a franchisee’s facilities or any other actions of a franchisee in the City. In any case in which suit or action is instituted against the City by reason of damage or injury caused by a franchisee, the City shall cause written notice thereof to be given to a franchisee, and a franchisee thereupon shall have the duty to appear and defend any such suit or action, without cost or expense to the City. (Ord. 4413, 8-9-93)

5-17-36 INSURANCE:

A. A franchisee shall, concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the City and file with the City Clerk and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, for the purpose of protecting the City and all persons against liability for loss or damage, for personal injury, death and property damage, and errors or omissions, occasioned by the operations of a franchisee under such franchise, such policy to provide minimum limits of one million dollars ($1,000,000.00) for both personal injury and/or property damage.

B. The policies mentioned in the foregoing subsection A shall name the City as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the City thirty (30) days in advance of the effective date thereof. If such insurance is provided by a policy which also covers a franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 4413, 8-9-93)

5-17-37 PERFORMANCE BOND:

A franchisee shall promptly repair or cause to be repaired any damage to City property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the City, shall be required to post a performance bond or other surety acceptable to the City in an amount specified by the City in favor of the City warranting that all restoration work will be done promptly and in a workmanlike manner and that penalties, if any, after final adjudication are paid to the City within ninety (90) days of such finding. (Ord. 4413, 8-9-93)

5-17-38 FRANCHISING COSTS:

A franchisee shall pay to the City upon acceptance of any franchise granted hereunder, the City’s out-of-pocket costs associated with the franchising process. The City shall provide the franchisee an itemization of its anticipated costs. Such payment is in addition to franchise fee payments. Payment is due within thirty (30) days of receipt of appropriate invoice from the City. (Ord. 4413, 8-9-93)

5-17-39 EQUALIZATION OF CIVIC CONTRIBUTIONS:

A. Additional Franchises; Proportional Payment Required:

1. In the event of one or more franchises being granted the City may require that such subsequential franchisees pay to the City an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as access and institutional network costs, bi-directional or equivalent cable installed to Municipal buildings and similar expenses.

2. On the anniversary of the grant of each later awarded franchise, such franchisees shall pay to the City an amount proportional to the amount contributed by the original franchisee, based upon the amount of subscribers held by such franchisees.

B. Provision of Additional Channels: Additional franchisees shall provide all PEG access channel(s) and emergency override systems currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees may interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. The City Council, in such cases of dispute of award, may be called upon to arbitrate regarding these arrangements. (Ord. 4413, 8-9-93)

5-17-40 INCONSISTENCY:

If any portion of this Chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other Federal law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other Federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this Chapter shall not be effected thereby. (Ord. 4413, 8-9-93)

5-17-41 SEVERABILITY:

Each section, subsection or other portion of this Chapter shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. (Ord. 4413, 8-9-93)

5-17-42 APPENDIX A; CUSTOMER SERVICE STANDARDS:

Appendix A, Customer Service Standards, attached to Ordinance No. 4413, on file in the office of the City Clerk, is hereby adopted by reference and made a part of this Chapter as if fully set out herein. (Ord. 4413, 8-9-93)

See Section 5-17-42 of this Chapter.

CHAPTER 17CABLE COMMUNICATION SYSTEMS

5-17-1 DEFINITIONS: