Chapter 5.60 CABLE TELEVISION

The purpose of this chapter is to provide for franchising and regulation of cable television providers within the city of Washougal. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.1, 1980)

5.60.020 Definitions.

For the purpose of this chapter, the following terms, phrases, words 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, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

(1) “Basic service” means any service tier which includes the retransmission of local television broadcast signals and public, educational and governmental access channels, or as such service tier may be further defined by federal law.

(2) “Cable Act” means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 and any amendments thereto, including those contained in the Telecommunications Act of 1996, and any future federal cable television legislation.

(3) “Cable system” shall have the meaning set forth in the Cable Act.

(4) “Cable operator” means any person or group of persons, including a grantee:

(a) Who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such a cable system; or

(b) Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

(5) “City” means the city of Washougal, Washington.

(6) “FCC” means the Federal Communications Commission and any legally appointed, designated or elected agent or successor.

(7) “Franchise” means the nonexclusive agreement or renewal thereof for the construction and operation of a cable system as entered into by the city and cable operator.

(8) “Gross revenues” shall be defined in the franchise agreement.

(9) “Street” means the surface of and the space above and below any public street, road, highway, freeway, lane, path, public way or place, sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter held by the city, Clark County or the state for the purpose of public travel and shall include other easements or rights-of-way as shall be now held or hereafter held by any of the entities cited above.

(10) “Subscriber” means any person who or which elects to subscribe to, for any purpose, cable services provided by a grantee by means of or in connection with the cable system and whose premises are physically wired and lawfully activated to receive cable services from a grantee’s cable system. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.2, 1980)

5.60.030 Franchise required.

It shall be unlawful for any person to construct, operate or maintain a cable system or provide cable service over a cable system within the city without a franchise granted by the city authorizing such activity; provided, that nothing herein shall preclude the city from itself constructing, operating or maintaining a cable system with or without a franchise. No person may be granted a franchise without having entered into a franchise agreement with the city pursuant to this chapter. For the purpose of this provision, the operation of part or all of a cable system within the city means the use or occupancy of rights-of-way by facilities used to provide cable service. Services similar to cable service, such as open video system service, shall be subject to this chapter to the extent provided by law. A system shall not be deemed as operating within the city even though service is offered or rendered to one or more subscribers within the city, if no right-of-way is used or occupied. In no event shall a franchise be created unless it is issued by the city pursuant to this chapter and subject to a written franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.9, 1980)

5.60.035 Grant of multiple franchises.

All material provisions of any cable franchises granted pursuant to this chapter to enter the city’s public ways for the purpose of constructing or operating a cable system or providing cable service to any service area within the city to which another grantee of a franchise pursuant to this chapter is actually providing cable service under the provisions of a previously granted franchise shall be reasonably comparable to those of the previously granted franchise in order that one cable operator not be granted an unfair competitive advantage over another, and to provide all cable operators equal protection under the law. (Ord. 1757 § 1 (Exhs. A, B), 2014)

5.60.040 Franchise – Application and consideration.

(1) Application. Each application for a new franchise under this chapter shall:

(a) Be submitted in a form approved by the city.

(b) Accompanied by a fee of $5,000 by certified or cashiers check made payable to the city of Washougal. Said fee shall be used in processing and considering such applications under this chapter and shall be nonrefundable. In addition, if the total receipts from such applicant fee for a new franchise is less than the costs of processing all such applications, including costs of staff and professional services, contractors, payment of the balance of such cost by the successful applicant, within 60 days of demand by the city shall be a condition of award of a new franchise to it.

(2) Consideration of Applications.

(a) The city will consider each application for a new franchise where the application is found to be acceptable for filing and in substantial compliance with the requirements of this chapter and any applicable application or request for proposals. In evaluating an application the city will consider, among other things, the applicant’s past service record in other communities, the nature of the proposed facilities and services, proposed area of service, and whether the proposal would adequately serve the public needs and the overall interests of the citizens of the city. The city may elect to undertake an assessment of future cable-related community needs and interests, and may require that the applicant’s proposal be responsive thereto.

(b) If the city determines that an applicant’s proposal, including the proposed service area, would serve the public interest, it may grant a franchise to the applicant, subject to terms and conditions as agreed upon between the applicant and the city and incorporated into a written franchise agreement.

(3) Costs to be borne by the grantee of a new franchise shall include all costs and publications of notices prior to any public meeting provided for pursuant to this chapter and all other publications required by law. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.3, 1980)

5.60.055 Franchise extensions.

A franchise term may be extended by the city with the agreement of the grantee upon the same terms and conditions as the current agreement or upon such other terms and conditions as are mutually agreeable to the city and the grantee. The grantee of a franchise extension shall be required to accept the terms and conditions of the extension in conformity with WMC 5.60.090. (Ord. 1757 § 1 (Exhs. A, B), 2014)

5.60.065 Franchise renewals.

(1) In the course of considering a request for a franchise renewal the city shall adhere to all requirements of applicable federal law. The public shall be afforded appropriate notice and opportunity to participate in any proceedings undertaken by the city for the purpose of identifying future cable related community needs and interests, and reviewing the grantee’s performance during any existing franchise term.

(2) The city manager shall conduct the preliminary assessment regarding renewal of a franchise. (Ord. 1916 § 1 (Exh. A), 2020; Ord. 1757 § 1 (Exhs. A, B), 2014)

5.60.080 Franchise – Territory.

Any franchise shall be for the territorial limits of the city and for any area henceforth added thereto during the term of the franchise subject to conditions of RCW 35.13.280 (annexation agreement). (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.5, 1980)

5.60.090 Franchise – Duration and acceptance.

The franchise and the rights, privileges and authority granted by ordinance shall take effect and be in force from and after final passage thereof, as provided by law, and shall continue in force and effect for a term to be provided in the franchise agreement; provided, that within 14 days after the date of final passage of the franchise the cable operator shall file with the city clerk its unconditional acceptance of the franchise and promise to comply with and abide by all its provisions, terms, and conditions. Such acceptance and promise shall be in writing duly executed and sworn to, by, or on behalf of the cable operator before a notary public or other officer authorized by law to administer oaths. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.6, 1980)

5.60.110 Police powers and relations of franchise agreement to other provisions of law.

In accepting any franchise, the cable operator acknowledges that its rights thereunder are subject to the police and legislative powers of the city to adopt and enforce general ordinances it finds necessary for the health, safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances so enacted by the city.

Any conflict between the provisions of any franchise and any other present or future lawful exercise of the city’s police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to cable operator which contains provisions inconsistent with the franchise shall prevail only if upon such exercise, the city finds an emergency exists constituting a danger to health, safety, property or general welfare, or such exercise is mandated by law. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.8, 1980)

5.60.120 Use of cable facilities by city.

The city shall have the right, during the life of the franchise, to install and maintain free of charge upon the poles of the cable operator any wire and pole fixtures that do not unreasonably interfere with the operations of the cable operator. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.10, 1980)

5.60.140 Letter of credit required.

The city shall have the right to require the cable operator to provide a letter of credit to be used to insure the faithful performance of the cable operator of all provisions of the franchise and shall be provided for in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.12, 1980)

5.60.150 Performance bond requirements.

The city shall require that a performance bond be provided by the cable operator the terms of which shall be fixed in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.13, 1980)

5.60.160 Liability insurance requirements.

The city shall require that cable operator provide sufficient liability insurance to protect the city in an amount and under circumstances to be outlined in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.14, 1980)

5.60.170 City indemnification.

The indemnity provision shall be as set forth in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.15, 1980)

5.60.185 Access.

(1) The city may require that applications and proposals for new franchises address the provision of public, education, and local government access channels, including facilities, equipment and capital support sufficient to meet the community needs. Applicants for new franchises and grantees requesting renewal of franchises are encouraged to provide additional access support and support for local origination programming in their franchise proposals. If supported by its assessment of future cable related community needs and interests, the city may require that a request for renewed franchise address facilities, equipment and capital support sufficient to meet those needs and interests.

(2) The access program may be managed by the city or its designated access provider. The manager(s) of the access program shall establish rules for the use of access channels consistent with the requirements of this chapter, a franchise, applicable law and the intended purpose of such channels. Such rules shall in all cases be subject to review and approval by the city or its designated access manager. (Ord. 1757 § 1 (Exhs. A, B), 2014)

5.60.190 Notice of public meetings.

Minimum public notice of any public meeting relating to the cable franchise shall be by publication at least once in a local newspaper of general circulation in compliance with Washington State statutes. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 1.17, 1980)

Article II. System Extension, Operation, Standards and Procedures

5.60.210 Construction timetable and line extensions.

The city shall have the right to determine appropriate times for providing cable service to subscribers. The timetable may be set forth in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.2, 1980)

5.60.220 Street use and construction standards.

Cable operator shall conform to the requirements under the terms of Chapter 12.30 WMC, Excavation and Encroachments, in its current form or as it may be amended in the future. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.3, 1980)

5.60.260 Erection, removal and uses of poles or wire-holding structures.

(1) No poles or other wire-holding structures shall be erected by the cable operator without prior approval of the city with regard to location, height, types, and any other pertinent aspect. However, no location of any pole or wire-holding structure of the cable operator shall be a vested interest, and such poles or structures shall be removed or modified by the cable operator at its own expense whenever the city determines that the public convenience would be enhanced thereby.

(2) Where poles or other wire-holding structures already existing for use in serving the city are available for use by the cable operator, but it does not make arrangements for such use, the city may require the cable operator to use such poles and structures if it determines that the public convenience would be enhanced thereby and that the terms of the use available to the cable operator are just and reasonable.

(3) Where the city, or a public utility serving the city, desires to make use of the poles or other wire-holding structures of the cable operator, but agreement thereof with the cable operator cannot be reached, the city may require the cable operator to permit such use for such consideration and upon such terms as the city shall determine to be just and reasonable, if the city determines that the use would enhance the public convenience and would not unduly interfere with the cable operator’s operations. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.4(d), 1980)

5.60.270 Relocation of facilities.

In the event that at any time during the period of the franchise, the city, county or state shall lawfully elect to alter, or change the grade of any street, alley or other public way, the cable operator, upon reasonable notice by the proper municipality, shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.4(e), 1980)

5.60.280 Cooperation with building movers.

The cable operator 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, raising or lowering of wires shall be paid by the person requesting the same, and the cable operator shall have the authority to require such payment in advance. The cable operator shall be given not less than 48 hours’ advance notice to arrange for such temporary wire changes. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.4(f), 1980)

5.60.290 Tree trimming or removal.

The cable operator shall not remove any tree or trim any portion, either above, at or below ground level, of any tree within any public place without the prior consent of the city. Regardless of who performs the work requested by the cable operator, the cable operator shall be responsible, shall defend and hold the city harmless for any and all damages to any tree as a result of trimming, or to the land surrounding any tree, whether such tree is trimmed or removed. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.4(g), 1980)

5.60.330 Franchise fee.

(1) Franchise Fees. As compensation for the benefits and privileges granted under a franchise agreement and in consideration of permission to use the city’s streets, each cable franchise grantee shall pay as a franchise fee to the city, throughout the duration of a franchise agreement, an amount equal to five percent of the grantee’s gross revenues derived from the operation of the cable system to provide cable service in the franchise area. Accrual of such franchise fees shall commence as of the effective date of the franchise agreement. The franchise fees are in addition to all other fees, assessments, taxes or payments of general applicability that the grantee may be required to pay under any federal, state or local law. The franchise agreement and the franchise fees paid thereunder are not in lieu of any other generally applicable required permit, authorization, fee, charge or tax.

(2) Payments. A grantee’s franchise fee payments to the city shall be computed and paid annually unless a more frequent schedule is provided for by franchise agreement.

(3) Acceptance of Payment and Recomputation. No acceptance of any payment shall be construed as an accord by the city that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the city may have for further or additional sums payable or for the performance of any other obligation of a grantee.

(4) Franchise Fee Reports. A grantee shall furnish to the city annually or by such deadline as shall be set forth in the franchise agreement a statement stating the total amount of gross revenues and all payments, deductions and computations for the period covered by the payments. Such statement shall be reviewed by an independent certified public accountant prior to submission to the city.

(5) Annual Franchise Fee Reports. A grantee shall furnish to the city annually by such deadline as shall be set forth in the franchise agreement a statement stating the total amount of gross revenues and all payments, deductions and computations for the period covered by the payments. Such statement shall be reviewed by an independent certified public accountant prior to submission to the city.

(6) Audits. On an annual basis, upon 30 days’ prior written notice, city shall have the right to conduct an independent audit of a grantee’s records reasonably related to the administration or enforcement of a franchise agreement, in accordance with generally accepted accounting principles. The commission may hire an independent certified public accountant to audit the grantee’s financial records, in which case the grantee shall provide all necessary records to the certified public accountant. If the audit shows that franchise fees have been underpaid by four percent or more, the grantee shall pay the total cost of the audit.

(7) Interest on Late Payments. In the event that a franchise fee payment or other sum is not received by the city on or before the due date, or is underpaid, the grantee shall pay in addition to the payment, or sum due, interest from the due date at the rate equal to the interest rate specified for judgments entered in the Superior Court of the state of Washington.

(8) Alternative Remedies. A cable franchise agreement may provide for alternative remedies for the city and the cable franchise grantee in the event that any section, subsection, paragraph, term or provision of a cable franchise agreement of this chapter or of any other ordinance, law, or document incorporated therein by reference is held by a court of competent jurisdiction to be invalid, unconstitutional or unenforceable. The purpose of such alternative remedies shall be to place the parties, as nearly as possible, in the position that they were in prior to such determination, consistent with applicable law.

(9) Tax Liability. Payment of the franchise fees shall not exempt a grantee from the payment of any generally applicable license, permit fee or other generally applicable fee, tax or charge on the business occupation, property or income of the grantee that may be imposed by the city.

(10) Payment on Termination. Upon termination of a franchise agreement for any reason, the grantee shall file with the city within 90 calendar days of the date of the termination, a financial statement, verified by a representative of grantee, showing the gross revenues received by grantee since the end of the previous fiscal year. The city reserves the right to satisfy any remaining financial obligations of the grantee to the city by utilizing the funds available in a letter of credit or other security provided by the grantee. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.8, 1980)

5.60.360 Availability of company books and records for inspection.

The city shall have the right to require the cable operator to provide minimum service requirements and provide for any equipment requirements and to provide designated channels for government and education uses. Said service requirements shall be contained in the franchise agreement.

The city shall have the rights to inspect the books, records, maps and other like materials of the cable operator at such times and locations to be specified in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.10, 1980)

5.60.390 Transfer of ownership or control.

The franchise agreement shall set forth provisions for transfer of ownership or control of the franchise. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 2.9, 1980)

Article III. Administration and Regulation

5.60.410 Additional rules and regulations may be promulgated by city.

(1) In addition to the inherent powers of the city to regulate and control this franchise, and those powers expressly reserved by the city, or agreed to and provided for herein, the right and power is hereby reserved by the city to promulgate such additional regulations as it shall find necessary in the exercise of its lawful powers and in furtherance of the terms and conditions of the franchise.

(2) The city may also adopt appropriate regulations at the request of the cable operator upon application. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.1, 1980)

5.60.440 Compliance with state and federal laws.

Notwithstanding any other provisions of the franchise to the contrary, the cable operator shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof; provided, however, if any such state or federal law or regulation shall require the cable operator to perform any service, or shall permit the cable operator to perform any service, or shall prohibit the cable operator from performing any service, in conflict with the terms of this franchise or of any law or regulation of the city, then as soon as possible following knowledge thereof, the cable operator shall notify the city of the point of conflict believed to exist between such regulation or law and the laws or regulations of the city or the franchise. If the city determines that a material provision of this chapter is affected by any subsequent action of the state or federal government, the city shall have the right to modify any of the provisions herein to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.9, 1980)

5.60.460 Theft of services and tampering prohibited.

(1) No person, whether or not a subscriber to the cable system, may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment or apparatus of the cable operator, or commit any act with intent to cause such damage, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and apparatus, or appurtenances of the cable operator with the intent to obtain a signal or impulse from the cable system without authorization from or compensation to the cable operator, or to obtain cable television or other communications service with intent to cheat or defraud the cable operator of any lawful charge to which it is entitled.

(2) Any person convicted of violating any provision of this section is subject to a fine of not less than $50.00 nor more than $500.00 for each offense. Each day’s violation of this section shall be considered a separate offense. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.11, 1980)

5.60.470 Efforts to improve Washington State news required.

Any franchisee shall make all possible efforts to improve the quantity and quality of Washington State news and public affairs programming, including but not limited to applying to the FCC for a waiver of any signal carriage restrictions imposed by the FCC. The franchisee shall also make reasonable efforts to produce and obtain Washington State news and public affairs programming for the Vancouver metropolitan area. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.12, 1980)

5.60.480 Selling or servicing televisions by franchisee prohibited.

No franchisee or any major stockholder of a franchisee shall directly or indirectly engage within the city in the business of selling, leasing, renting, servicing, or repairing radio or television sets or other receivers or parts thereof which make use of standard broadcast entertainment signals; provided, that nothing herein shall prevent a franchisee from making modifications to the tuner input circuit of the subscribers’ television 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 response to subscriber complaints, or from the selling, servicing, or repairing of receivers and other equipment belonging to other CATV system operators for use in the conduct of their business. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.13, 1980)

5.60.490 Forfeiture and termination of franchise.

The franchise can be forfeited or terminated under the terms as provided in the franchise agreement. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.5, 1980)

5.60.510 Receivership or trusteeship.

The council shall have the right to cancel the franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the cable operator, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of such 120 days, or unless:

(1) Within 120 days after the election of appointment, such receiver or trustee shall have fully complied with all the provisions of this chapter and remedied all defaults thereunder; and

(2) Such receiver or trustee, within such 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this chapter and the franchise granted to the cable operator. (Ord. 1757 § 1 (Exhs. A, B), 2014; Ord. 758 § 3.7, 1980)

5.60.515 Performance evaluation sessions.

(1) The city may hold regular performance valuation sessions annually on the anniversary dates of the effective date of a franchise granted pursuant to this chapter. All such evaluation sessions shall be conducted by the city manager, which shall forward its evaluation report and recommendations to council.

(2) Special evaluation sessions may be held at any time by the city manager during the term of any franchise.

(3) All regular evaluation sessions shall be open to the public and announced at least one week in advance in a newspaper of general circulation in the franchise area.

(4) Evaluation sessions shall deal with the grantee’s performance of the terms and conditions of the franchise and compliance with state and federal laws and regulations.

(5) As part of the annual performance evaluation session, the grantee shall submit to the city manager a plant survey report, or map, acceptable to commission which includes a description of the portions of the franchise area that are cabled and have all cable services available, including those areas where the system has been upgraded pursuant to a franchise agreement. Such report shall also include such additional information as may be required by a franchise agreement. If the city manager has reason to believe that a portion or all of the cable system does not meet the applicable FCC technical standards, the city, at its expense, retains the right to appoint a qualified independent engineer to evaluate and verify the technical performance of the cable system.

(6) During evaluations under this section, grantees shall fully cooperate with the city manager and shall provide such information and documents as necessary and reasonable for the city manager to perform the evaluation. (Ord. 1916 § 1 (Exh. A), 2020; Ord. 1757 § 1 (Exhs. A, B), 2014)

5.60.525 Severability.

If any section, subsection, sentence, clause, phrase, or other portion of this chapter, or its application to any person is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. (Ord. 1757 § 1 (Exhs. A, B), 2014)