[HISTORY: Adopted by the Common Council of the City of Shawano 2-25-1999 by Ord. No.
1400.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Bond Schedule — See Ch. 20.
[1]
Editor's Note: This ordinance also superseded former Ch. 15,
Community Antenna Television Franchise, of the 1982 Municipal Code,
adopted 4-7-1982 by Ord. No. 872.
It is the intent of this chapter and franchise agreement, if
any, to provide for and specify the means to attain a cable communications
system franchise in the City and to set forth the obligations and
rights of the City and grantee accompanying such franchise.
For the purpose of this chapter and franchise agreement, if
any, the following terms, phrases and words and their derivations
shall have the meanings specified herein. When not inconsistent with
the context, words used in the present tense include the future, and
words in the singular number include words in the plural number.
A subscriber service provided by the grantee, in addition
to basic service, for which a special charge is made based on program
or service content, time or spectrum space usage. Additional service
includes extended basic service.
Any and all revenues derived directly or indirectly by the
grantee, or any affiliate that is a cable operator, in connection
with the operation of the cable system pursuant to this chapter and
franchise agreement, if any. Further, "annual gross revenues" includes
compensation in whatever form, exchange or otherwise, derived from
all cable services, cable operations and cable-related activities
within the service area, including but not limited to:
Revenues from subscriber rates, pay television, premium channels,
service tiers, service clusters, institutional networks, on-air advertising,
installations, reconnections or similar fees;
Rebates or commissions received from travel, home shopping or
similar services, or commercial access;
Any and all compensation from all ancillary cable services,
cable operations and cable-related activities within the service area,
including but not limited to sale of cable or cable equipment, advertising
inserted into periodic billing statements or other notices, fees from
the sale of subscribers' late fees, rental or sale of descrambling
converters, or other devices, rental or sale of remote control devices,
rental or sale of a/b or input switches, rental or sale of digital
equipment; and
Compensation received for studio leased access and other facility
rental, other than those not associated with the operation of the
system.
The service tier that includes all signals of domestic television
broadcast stations provided to any subscriber (except a signal secondarily
transmitted by satellite carrier beyond the local service area of
such station, regardless of how such signal is ultimately received
by the cable system), any public educational and governmental programming
required by the franchise agreement to be carried on the basic tier,
and any additional video programming signals added to the basic tier
by the grantee, as defined from time to time by federal law and rules
of the FCC.
Title VI of the Communications Act of 1934, as amended, 47
U.S.C. § 151 et seq., and all other provisions of the Cable
Communications Policy Act of 1984, Pub. L. No. 98-549, and the Cable
Television Protection and Competition Act of 1992, Pub. L. No. 102-385;
and the Telecommunications Act of 1996 and any future amendments.
Any network of cables, optical, electrical or electronic
equipment, including television systems, used for the purpose of transmission
of electrical impulses of television, radio and other intelligences,
either analog or digital for sale or use by the inhabitants of the
City.
The City of Shawano, its officers and employees, unless otherwise
specifically designated, and the area within the territorial limits
of the City.
The governing body of the City or any successors to the legislative
powers of such body.
Operation will be considered to have commenced when sufficient
distribution facilities have been installed so as to permit the offering
of "full system service" to at least 25% of the dwelling units located
within the City.
The Federal Communications Commission and any legally appointed
or elected successors.
The right, privilege and authority granted by the ordinance
codified herein to install, maintain, upgrade and operate a cable
television system in the City.
A contractual agreement entered into between the City and
any grantee hereunder which is enforceable by the City and said grantee
and which sets forth the rights and obligations between the City and
said grantee in connection with the franchise.
Includes any tax, fee or assessment the City imposes on the
grantee solely because of the grantee's status as such. The term
"franchise fee" or "franchise payment" does not include:
Any tax, fee or assessment of general applicability (including
any such tax for or assessment imposed on both utilities and cable
operators or their services, but not including a tax, fee or assessment
which is unduly discriminatory against the grantee);
Cable costs which are required by the franchise to be incurred
by grantee for educational or governmental access facilities;
Requirements or charges incidental to the awarding or enforcing
of the franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties or liquidated damages;
or
Any fee imposed under Title 17, United States Code.
All "basic services" and "additional services" offered by
the grantee.
Any person, as herein defined, receiving a franchise pursuant
to this chapter and franchise agreement, if any, and any legal franchising
resolutions as may be adopted by the City.
Incorporates all of the documents included in the response
to and including the document entitled "Invitation for Applications,"
dated December 10, 1997, submitted to the City Clerk.
The land, electronic processing equipment, antennas, tower,
building and other appurtenances normally associated with and located
at the starting point of a CCS.
Any channel available for lease and programming by persons
or entities other than the grantee, including those portions of the
other access channels not in use by their designated programmers.
Any channel where the grantee is the only designated programmer
and provides video programs to subscribers.
Is permissive.
Those hours during which similar businesses in the City are
open to serve customers. In all cases, "normal business hours" must
include some evening hours at least one night per week and some weekend
hours.
Those service conditions which are within the control of
the cable operator. Those conditions which are not within the control
of the cable operator include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages and severe
or unusual weather conditions. Those conditions which are ordinarily
within the control of the cable operator include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
Any channel where any member of the general public, educational
system or any noncommercial organization may be a programmer without
charge on a first-come, first-served, nondiscriminatory basis, in
accordance with FCC regulations, or where local government programming
is used.
The provisions of notice of contemplated action delivered
at least 48 hours prior to such action. Saturdays, Sundays and holidays
recognized by the City shall be excluded in the computation of this
48 hours.
Includes any sale, exchange, barter or offer for sale.
That geographical area within the incorporated limits of
the City.
Each is mandatory.
Includes all streets, roadways, highways, avenues, lanes,
alleys, courts, places, squares, curbs, sidewalks, easements, rights-of-way
or other public ways in the City which have been or may hereafter
be dedicated and open to public use, or such other public property
so designated by law.
Any person, firm, company, corporation or association receiving
either basic service or additional service from the grantee.
Operation will be considered substantially completed when
sufficient distribution facilities have been installed so as to permit
the offering of "full system service" to at least 90% of the dwelling
units in the City to which access is legally and reasonably available.
A person utilizing a channel for purposes of production or
transmission of material, as contrasted with receipt thereof, in a
subscriber capacity.
[1]
Editor's Note: Former § 15.03, Cable Communications
System Regulatory and Advisory Council established, as amended, was
repealed 10-7-2009 by Ord. No. 1760.
The City shall grant the right, privilege and franchise to construct,
operate and maintain a cable communications system in the City to
the grantee, for a period not to exceed 15 years, subject to the rights,
obligations, conditions and restrictions as hereinafter provided.
Applications for an initial franchise hereunder shall be filed
with the City Clerk and shall contain the following information and
provisions:
(1)
Proposal bond and filing fee. Provisions of the proposal bond as required in § 15.17 and payment of a nonrefundable filing fee to the City as set by Council resolution shall be due and payable concurrently with the application information.
[Amended 12-8-1999 by Ord. No. 1438]
(2)
Name and address of applicant. The name and business address
of the applicant, date of application and signature of applicant or
appropriate corporate officer.
(3)
Description of proposed operation. A general description of
the applicant's proposed operation in the service area and in
other areas within the state, including, but not limited to, business
hours, operating staff, maintenance procedures beyond those required
in this chapter and franchise agreement, if any, management and marketing
staff complement and procedures, and, if available, the rules of operation
for public access.
(4)
Signal carriage. A statement of the television and radio services
to be provided, including both off the air and locally originated
signals.
(5)
Special services. A statement setting forth a description of
the automated services proposed and a description of the production
facilities to be made available by the grantee for the public, municipal
and educational channels required to be made available under this
chapter and franchise agreement, if any, and the Federal Communications
Commission.
(6)
Programming assistance. A statement establishing any additional
funding, facilities, equipment or personnel beyond those required
elsewhere to be designated to effect and promote local programming
development. It is understood that the foregoing shall be available
without charge to all on a fair and nondiscriminatory basis and may
be used by the grantee as well. Such funding and services shall be
contingent upon a special showing, where required, that the proposed
uses are consistent with the regulatory program of the FCC.
(7)
Schedule of charges. A statement of the applicant's proposed
schedule of charges.
(8)
Corporate organization. A statement detailing the corporate
organization of the applicant, if any, including the names and addresses
of its officers and directors and the number of shares held by each
officer and director.
(9)
Stockholders. A statement identifying the number of authorized
and outstanding shares of applicant's stock, including a current
list of the names and current addresses of its shareholders holding
5% or more of applicant's outstanding stock.
(10)
Intra company relationships. A statement describing all intra
company relationships of the applicant, including parent, subsidiary
or affiliated companies.
(11)
Agreements and understandings. A statement setting forth all
agreements and understandings, whether written or oral, existing between
the applicant and any other person with respect to any franchise awarded
hereunder and the conduct of the operation thereof existing at the
time of proposal submittal.
(12)
Financial statement. If the applicant is a corporation, audited
financial statements for the two previous fiscal years. If the applicant
is a partnership, copies of the U.S. Partnership Return of Income
(IRS Form 1065) for the two previous fiscal years. If the applicant
is a sole proprietorship, copies of U.S. Individual Tax Return (IRS
Form 1040) for the two previous fiscal years.
(13)
Financial projection. A ten-year operations pro forma which
shall include the initial and continuing plant investment, annual
profit and loss statements detailing income and expenses, annual balance
sheets and annual levels of subscriber penetration. Costs and revenues
anticipated for voluntary services shall, if presented, be incorporated
in the pro forma as required in this chapter, but shall be separately
identified in the pro forma.
(14)
Financial support. Suitable written evidence from a recognized
financing institution, addressed to both the applicant and to the
City, advising that the applicant's financial ability and planned
operation have been analyzed by the institution and that the financing
institution is prepared to make the required funds available to applicant,
if awarded a franchise. If the planned operation is to be internally
financed, a Council resolution shall be supplied authorizing the obtainment
and expenditure of such funds as are required to construct, install
and operate the CCS contemplated hereunder.
(15)
Technical description. A technical description of the type of
system proposed.
(16)
Technical statement. A statement from the applicant's senior
technical staff member or consultant advising that he or she has reviewed
the network description, the network technical standards, performance
measurements, channels to be provided, service standards, construction
standards and conditions of street occupancy and that the applicant's
planned network and operations thereof shall meet all the requirements
set forth therein.
(17)
Existing, pending and proposed franchises. A statement of existing,
pending and proposed franchises held or applied for by the applicant
which the applicant proposes to apply for, indicating as applicable
when the franchises were issued and when the systems were constructed
and the present state of the system or application in each respective
governmental unit, together with the name, address and telephone number
of a responsible governmental official knowledgeable of the applicant.
(18)
Convictions. A statement as to whether the applicant or any
of its officers or directors or holders of 5% or more of its voting
stock has in the past 10 years been convicted of or has charges pending
for any crime other than a routine traffic offense and the dispositions
of each such case.
(19)
Operating experience. A statement detailing the prior cable
television experience of the applicant, including that of the applicant's
officers, management and staff to be associated with the proposed
operation.
(20)
Franchise renewal information. If an application is for renewal
of a franchise, the renewal proposal shall include the following:
(a)
A summary of the technical, financial and programming history
of the network since the granting of the original franchise.
(b)
A statement and timetable that outlines all proposed changes,
expansion or improvements in the system as to services, programming
or technical specifications during the forthcoming five-year review
period.
(c)
Said proposal shall be filed with the City Clerk at least 90
days prior to the date the renewal is to take effect.
(21)
Additional requirements. The application for an initial CCS new franchise shall respond specifically and in sequence to Subsections (1) through (19) above and shall be bound separately from any additional information proffered by the applicant. Six copies of the application shall be supplied to the City. Supplementary, additional or other information that the applicant deems reasonable for consideration may be submitted at the same time as its application, but shall be separately bound and submitted in the above number of copies. The City may at its discretion consider such additional information as part of the application.
(22)
Supplementation to application. The City may require such supplementary,
additional or other information that the City deems reasonably necessary
for its determinations. Such modifications, deletions, additions or
amendments to the application shall be considered only if specifically
requested by the City.
(23)
Review of qualifications. Specific permission to operate a CCS
under the provisions of this chapter and franchise agreement, if any,
may be granted by the City Council to any grantee after a review of
the legal, character, financial and technical qualifications and the
adequacy and feasibility of the grantee's construction arrangements
and after the City Council has approved the grantee's qualifications
as a part of a public proceeding affording due process.
(1)
Performance review.
(a)
On or about the second, fifth and tenth anniversaries of the
effective date of the franchise, the City shall schedule a public
meeting or meetings with the grantee to review the franchise performance,
plans and prospects. The grantee shall make available specified records,
documents and information for this purpose, and the City may inquire
in particular whether the grantee is supplying a level and variety
of services equivalent to those being generally offered at that time
in the industry in comparable market situations.
(b)
Topics for discussion and review at both the regular and special
review sessions shall include, but shall not be limited to, the following:
services, rate structure, free or discounted services, application
for new technologies, system performance, services provided, programming,
subscriber complaints, user complaints, rights of privacy, amendments
to this agreement, under grounding processes and developments in the
law.
(2)
Revising franchise requirements.
(a)
The City shall confer with the grantee regarding any modifications
in the franchise which might impose additional obligations on the
grantee, and the grantee may in turn seek to negotiate relaxations
in any requirements imposed on it which are shown to be impractical.
(b)
Within 30 days of the conclusion of such negotiations, the City may direct the grantee to show cause why specified terms and conditions should not be incorporated into the franchise, and the grantee may similarly file with the City a written request that specified obligations of its franchise be removed or relaxed. Implementation of such requests shall correspond with the procedures set forth in § 15.13(3). The City Council will order changes in the franchised rights and obligations of the grantee only if it finds from all available evidence that such changes will not impair the economic viability of the system or degrade the attractiveness of the system's service to present and potential subscribers.
(3)
Franchise renewal.
(a)
The City shall determine whether to renew a franchise granted
under this chapter in the event that the grantee files a written request
for such a renewal. The grantee shall submit such a request no sooner
than 36 months before the expiration of the franchise. At the time
of such request, the City may revise this chapter, reevaluate the
needs of the community for cable service and review the performance
of the grantee.
(b)
To the extent applicable, the Cable Act shall govern the procedures
and standards for renewal of any franchise awarded pursuant to this
chapter.
(c)
To the extent that the Cable Act is not applicable, the City
in its sole discretion and judgment shall have the right to grant,
deny or conditionally grant renewal of a franchise, provided that
the City shall not unreasonably refuse to renew the franchise or unreasonably
condition the renewal. The conditions the City may place on its approval
shall include, but are not limited to: updating the chapter and surveying
community cable needs, remedy of historical or existing violations
of the franchise or chapter; payment of all fees and penalties owed
by the grantee at the time of the renewal; acceptance of any updated
chapter; and acceptance of any updated franchise agreement.
(1)
Franchise nonexclusive. The franchise shall not be exclusive,
and the City reserves the right to grant a similar franchise to any
person, firm, company, corporation or association at any time.
(2)
Franchise amendable. The scope of the franchise shall be deemed
amendable from time to time to allow the grantee to innovate and implement
new services and developments; provided, however, that no such services
or developments be implemented without the expressed prior approval
of the City Council.
(3)
Privileges must be specified. No privilege or exemption shall
be inferred from the granting of the franchise unless it is specifically
prescribed.
(4)
Authority granted. The franchise shall give to the grantee the right and privilege to construct, erect, operate, modify and maintain, in, upon, along, above, over and under streets as defined in § 15.02, which have been or may hereafter be dedicated and open to public use in the City, towers, antennas, poles, cables, electronic equipment and other network appurtenances necessary for the operation of a CCS in the City, subject to § 15.28 of this chapter and the franchise agreement.
(5)
Mortgage or pledge of system. Nothing in this chapter and franchise
agreement, if any, shall be deemed to prohibit the mortgage or the
pledge of the system or any part thereof. However, any such mortgage
or pledge shall be subject to and subordinate to the right of the
City under the franchise or applicable laws.
(6)
Previous rights abandoned. The franchise shall be in lieu of
any and all other rights, privileges, powers, immunities and authorities
owned, possessed, controlled or exercisable by the grantee or any
successor pertaining to the construction, operation or maintenance
of a cable communications system in the City. The acceptance of the
franchise shall operate, as between grantee and the City, as an abandonment
of any and all of such rights, privileges, powers, immunities and
authorities within the City. All construction, operation and maintenance
by the grantee of any cable system in the City shall be under the
franchise and not under any other right, privilege, power, immunity
or authority, except as granted by applicable state or federal law.
(7)
Subject to other regulatory agencies rules and regulations.
The grantee shall at all times during the life of the franchise be
subject to all lawful exercise of the police power by the City and
other duly authorized regulatory state and federal bodies and shall
comply with any and all codes which the City has adopted or shall
adopt applying to the public generally and to other grantees.
(8)
Compliance with laws, rules and regulations. In the event any
valid law, rule or regulation of any governing authority or agency
having jurisdiction, including but not limited to the FCC, contravenes
the provisions of this chapter and franchise agreement, if any, subsequent
to its adoption, then the provision hereof shall be superseded by
any such valid law, rule or regulation to the extent that the provisions
hereof are in conflict and contrary to any such law, rule or regulation.
(9)
Pole use agreements required. The franchise shall not relieve
the grantee of any obligation involved in obtaining pole- or conduit-use
agreements from the gas, electric and telephone companies, or others
maintaining poles or conduits in the streets of the City, whenever
the grantee finds it necessary to make use of such poles or conduits.
(10)
No right of property. Anything contained herein to the contrary
notwithstanding, the franchise shall not impart to the grantee any
right of property in or on City-owned property.
(11)
Franchise binding. Anything contained herein to the contrary
notwithstanding, all provisions of this chapter and franchise agreement,
if any, shall be binding upon the grantee, its successors, lessees
or assignees.
(1)
Transfer of franchise. Any franchise granted under this chapter
and franchise agreement, if any, shall be a privilege to be held for
the benefit of the public. Any franchise so granted cannot, in any
event, be sold, transferred, leased, assigned or disposed of by any
method, including, but not limited to, forced or voluntary sale, merger
or consolidation, either in whole or in part, without the prior written
consent of the City, and then only under such reasonable conditions
as the City may establish. Such consent as required by the City shall
be given or denied no later than 120 days following any request and
shall not be unreasonably withheld. Prior consent shall not be required
when transferring the franchise between wholly-owned subsidiaries
of the same entity.
(2)
Notice to City on 20% change of ownership or control. The grantee
shall promptly notify the City in writing of any proposed change in,
or transfer of, control of the grantee. For the purpose of this subsection,
a change in, or transfer of, control shall occur on the acquisition
or transfer by any person of 20% or more of the beneficial ownership
interest in the grantee.
(3)
Consent of City required on 51% change of ownership or control.
In the event that any person or group of persons acquires or transfers
51% or more of the beneficial ownership interest in the grantee, grantee's
franchise shall be subject to cancellation unless and until the City
shall have consented in writing to the acquisition or transfer. The
City shall give or deny consent no later than 120 days after receiving
written notice of the acquisition or transfer. The City's consent
shall not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of
control, the City may inquire into the qualifications of the prospective
controlling party, and the grantee shall assist the City in any such
inquiry.
(4)
Grantee's responsibilities. In seeking the grantee's
consent to any change in ownership or control, the grantee shall have
the responsibility to do the following:
(a)
To show to the satisfaction of the City whether the proposed
purchaser, transferee or assignee (the "proposed transferee"), which
in the case of a corporation shall include all directors and all persons
having a legal or equitable interest of 5% or more of the voting stock:
1.
Has ever been convicted or held liable for acts involving moral
turpitude, including, but not limited to, any violation of federal,
state or local law or regulations, or is presently under an indictment,
investigation or complaint charging such acts;
2.
Has ever had a judgment in an action for fraud, deceit or misrepresentation
entered against it, her, him or them by any court of competent jurisdiction;
or
3.
Has pending any legal claim, lawsuit or administrative proceeding
arising out of or involving a cable system.
(b)
To establish to the satisfaction of the City the financial solvency
of the proposed transferee by submitting all current financial data
for the proposed transferee which the grantee was required to submit
in its franchise application, and such other data as the City may
request, where the same shall be audited, certified and qualified
by a certified public accountant.
(c)
To establish to the satisfaction of the City that the financial
and technical capability of the proposed transferee is such as shall
enable it to maintain and operate the cable system for the remaining
term of the franchise under the existing franchise terms.
(5)
Rights of financial institutions. Any financial institution
having a pledge of the franchise or its assets for the advancement
of money for the construction and/or operation of the franchise shall
have the right to notify the City that the financial institution,
or its designee, as approved in writing by the City, shall take control
and operate the cable system in the event of a grantee default in
its financial obligations. Further, said financial institution shall
also submit a plan for such operation that will ensure continued service
and compliance with all franchise requirements during the term the
financial institution exercises control over the system. The financial
institution shall not exercise control over the system for a period
exceeding one year unless extended by the City in its discretion,
but during said period of time it shall have the right to petition
the City to transfer the franchise to another grantee. Except insofar
as the enforceability of this subsection may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and further subject to
applicable federal, state or local law, if the City finds that such
transfer, after considering the legal, financial, character, technical
and other public interest qualities of the proposed transferee, is
satisfactory, the City shall transfer and assign the right and obligations
of such franchise as in the public interest. The consent of the City
to such transfer shall be given or denied no less than 120 days after
any request and shall not be unreasonably withheld.
(6)
Effect of City's consent to transfer. The consent or approval
of the City to any transfer by the grantee shall not constitute a
waiver or release of the rights of the City in and to the streets,
and any transfer shall, by its terms, be expressly subject to the
terms and conditions of any franchise.
(7)
City's right to purchase system. The City shall be entitled
to a right of first refusal of any bona fide offer to purchase the
CCS made to the grantee. "Bona fide offer" as used in this section
means a written offer which has been accepted by grantee subject to
the City's rights under the franchise. The price to be paid by
the City shall be the price of the bona fide offer at the same terms
and conditions as the bona fide offer. The City shall notify grantee
of its decision to purchase within 90 days of the City's receipt
from the grantee of a copy of the written bona fide offer.
(1)
Operations to be in accordance with rules. The grantee shall
maintain and operate its CCS in accordance with the rules and regulations
of the FCC, the State of Wisconsin and the City as are applicable
or may be promulgated.
(2)
Local payment center. The grantee shall maintain a local payment
center, which shall be accessible during normal business hours. This
payment center shall accept subscriber payments.
(3)
Service records maintained. The grantee shall at all times make
and keep a list of all complaints and interruptions or degradation
of service received or experienced during the term of franchise at
its office in the City. The records maintained above shall also include
complaint response time and service restoral period and shall be continuously
open to inspection, examination or audit by any duly authorized representative
of the City. Records must be kept three years.
(4)
Grantee rules and regulations. The grantee shall have the authority
to promulgate such rules, regulations, terms and conditions governing
the conduct of its business as shall be reasonable and necessary to
enable the grantee to exercise its rights and perform its obligations
under this chapter and franchise agreement, if any.
(a)
Rules to be in conformance with other regulations. No such rules,
regulations, terms and conditions promulgated under Subsection (4)
above shall be in conflict with the provisions hereof or the laws
of the state or the rules and regulations of the FCC or any rules
and regulations promulgated by the City in the exercise of its regulatory
authority.
(b)
All rules to be filed with City. Two copies of all rules, regulations,
terms and conditions promulgated under Subsection (4) above, together
with any amendments, additions or deletions thereto, shall be kept
currently on file with the City Clerk, and another copy thereof shall
be maintained for public inspection during normal business hours at
grantee's office in the City (i.e., the local payment center);
no such rules, regulations, terms, conditions or amendments, additions
or deletions thereto shall take effect unless and until so filed and
maintained.
(5)
Subscribers' antennas. The grantee shall not require the
removal or offer to remove or provide any inducements for removal
of any potential or existing subscriber's antenna as a condition
of provision of service.
(6)
Sale or service of television receivers. Neither the grantee
during the period of the franchise nor any of its affiliated, subsidiary,
parent organizations, officers or directors or stockholders holding
5% or more of outstanding stock of the grantee shall, within the corporate
limits of the City or within 10 miles in any direction, directly or
indirectly, engage in the retail sale, renting, leasing or repairing
of radio or television receivers or their appurtenances, nor shall
they require any subscriber to utilize the services of any specific
television/radio service business for the repair or maintenance of
the subscriber's receivers, either radio or television.
(7)
Antenna switch. The grantee, upon request from any subscriber,
shall install, at a reasonable charge therefor, a switching device
so as to permit a subscriber to continue to utilize his or her own
television antenna as he or she chooses.
(1)
Right of amendment reserved to City. The City may, from time
to time, add to, modify or delete provisions of this chapter as it
shall deem necessary in the exercise of its regulatory powers, provided
that such additions or revisions are reasonable and do not place an
undue financial burden on the grantee. Such additions or revisions
shall be made only after a public hearing for which the grantee shall
have received written notice at least 30 days prior to such hearing.
(2)
No impairment of City's rights. Nothing herein shall be
deemed or construed to impair or affect, in any way to any extent,
the right of the City to acquire the property of the grantee through
the exercise of the right of eminent domain, at a fair and just value,
which shall not include any amount for the franchise itself or for
any of the rights or privileges granted, and nothing shall be construed
to contract away or to modify or abridge, either for a term or in
perpetuity, the City's right to eminent domain.
(3)
Grantee agrees to City's rights. The City reserves every
right and power which is required to be reserved or provided by any
ordinance of the City, and the grantee shall, by its acceptance of
the franchise, agree to be bound thereby and to comply with any action
or requirements of the City in its exercise of such rights or powers
which have been or may be enacted or established.
(4)
City's right of intervention. The City shall have the right
to intervene and the grantee specifically agrees by its acceptance
of the franchise not to oppose such intervention by the City in any
suit or proceeding within the franchise territory.
(5)
Powers of the City. Neither the granting of the franchise, nor
any provision governing the franchise, shall constitute a waiver or
bar to the exercise of any governmental right or power of the City.
(6)
City's right of inspection. The City reserves the right
during the life of the franchise to inspect and supervise all construction
or installation work performed subject to the provisions of this chapter
and franchise agreement, if any, and to perform system measurements
to ensure compliance with the terms of this chapter and franchise
agreement, if any.
(7)
City's right of acquisition. Upon expiration of the term of the franchise, or revocation, or other termination as provided by law, or upon receipt of application for approval of an assignment of the franchise or upon for approval of a change of de facto control, the City shall have a right to purchase the CCS as set forth in § 15.12(3), (4) and in § 15.08(7) herein.
(8)
City's right of CCS installation. The City reserves the
right during the life of the franchise to install and maintain free
of charge upon or in the poles and conduits of the grantee any wire
and pole fixtures necessary for municipal subsystems on the condition
that such installation and maintenance thereof does not interfere
with the operation of the grantee.
(9)
City's transfer of franchise. Any right or power in or
duty imposed upon any elected official, officer, employee, department
or Council of the City shall be subject to transfer by the City to
any other elected official, officer, employee, department or Council.
(1)
Effective date. The franchise(s) provided for in this chapter
shall take effect and be in force after the 30th day following the
effective date of the franchise agreement between the City and the
grantee, provided that, within those 30 days, the grantee shall file
with the City the following:
(2)
Statement of unconditional acceptance. The grantee's statement
of unconditional acceptance of the franchise shall include a certification
that the grantee, by acceptance of the franchise, expressly acknowledges
the following:
(a)
That the grantee has relied upon its own investigation and understanding
of the power and authority of the City to grant the franchise.
(b)
That the grantee has not been induced to enter into the franchise
by any understanding or promise or other statement, whether verbal
or written, by or on behalf of the City concerning any term or condition
of the franchise that is not included in this chapter and franchise
agreement, if any.
(c)
That the grantee has carefully read this chapter and the franchise
agreement and that it accepts all the obligations under this chapter
and under the franchise agreement and also agrees that it will not
challenge any provision of this chapter or the franchise agreement
as unreasonable, arbitrary, invalid or void, but shall accept the
validity of the terms and conditions of the franchise in their entirety.
(3)
Grantee to have no recourse. The grantee shall have no recourse
whatsoever against the City for any loss, cost, expense or damage
arising out of any provision or requirement of this chapter or the
franchise agreement or the City's regulations or its regulation
or from the City's exercise of its authority to grant additional
franchises.
(1)
Revocation of proposal bond. The City reserves the right to
revoke the franchise and rescind all rights and privileges associated
with the franchise in the following circumstances:
(a)
If the grantee should default in the performance of any of its
obligations under this chapter and franchise agreement, if any, or
under the franchise agreement.
(c)
If a petition is filed by or against the grantee under the Bankruptcy
Act, or any other insolvency or creditors' rights law, state
or federal, and the grantee shall fail to have it dismissed.
(d)
If a receiver, trustee or liquidator of the grantee is applied
for or appointed for all or part of its assets.
(e)
If the grantee makes an assignment for the benefit of creditors.
(f)
If the grantee should violate any orders or ruling of any regulatory
body having jurisdiction over the grantee unless the grantee is lawfully
contesting the legality or applicability of such order or ruling.
(g)
If the grantee fails to receive the necessary FCC authorization
within a reasonable period of time, unless such cause is directly
attributable to an action or condition imposed by the City.
(h)
If the grantee knowingly and with intent to deceive makes any
false, misleading or fraudulent statements of fact in its proposal
for a franchise or other reports or information provided to the City,
other regulatory agencies or subscribers.
(2)
Revocation procedure. Upon the occurrence of any of the events enumerated in Subsection (1) of this section, the following procedures shall be followed:
(a)
The grantee shall be provided with a written notice of the alleged
default, describing the alleged default in as much detail as possible.
(b)
The grantee shall have 30 calendar days to correct the alleged
default or deny that such alleged default exists.
(c)
If the alleged default is denied to exist, or if no satisfactory
corrective action is undertaken within the thirty-day period, the
grantee shall be afforded a public hearing, with 20 days' advance
notice, before the City Council in order to respond to the allegation
of default. The public shall be permitted to speak at such hearing,
and the hearing may be continued from time to time as appropriate.
(d)
The City Council shall conclude the hearing with a finding that
the grantee is in default or is not in default.
(e)
If the City Council determines that there is a default, the
grantee shall be granted an additional amount of time as the City
Council shall deem reasonable to correct the default to the satisfaction
of the City Council.
(f)
At the conclusion of such reasonable period, the City Council
shall again at a public meeting determine whether the default has
been satisfactorily corrected, and if it has not, the franchise granted
under authority of this chapter and franchise agreement, if any, may
be immediately resolved to be revoked without further notice or hearing.
(3)
Purchase of system by City on nonrenewal.
(a)
If the City determines not to renew the franchise, the grantee
shall first offer the CCS for sale to the City at fair market value,
determined on the basis of the CCS valued as a going concern but with
no value allocated to the franchise itself.
(b)
If the determination of fair market value cannot be negotiated
or determined, the value shall be determined by an impartial appraisal
procedure pursuant to W.S.A. Ch. 788, wherein the grantee and the
City shall each choose an appraiser and the appraisers chosen shall
choose a third appraiser and the valuation determined by such appraisers
shall be considered the fair market value at which the system will
be offered to the City. The determination of the value of the system
shall be decreased by the amount of any damages sustained by the City
in connection with nonrenewal, including, without limitation, payment
made by the City to another person or entity to operate the CCS for
a temporary period after nonrenewal. The cost of the appraisal procedure
shall be shared equally by the City and grantee.
(c)
The City shall have 90 days commencing on the day the fair market
value of the system is determined either through negotiation or the
appraisal procedure to exercise its option to purchase. If the City
does not exercise its option to purchase, and the CCS is not sold
to another operator who has obtained a franchise from the City, the
grantee, upon request by the City, shall promptly remove all its plant,
structures and equipment. While transfer of the system and franchise
is being negotiated, arranged or ordered, the grantee may be required
to continue service to the public unless for reasons beyond the control
of the grantee such operation will be economically infeasible to the
grantee.
(4)
Purchase of system by City on revocation.
(a)
If the City revokes the franchise for cause, the grantee shall
first offer the CCS for sale to the City at an equitable price.
(b)
If the determination of an equitable price cannot be negotiated
or determined, the price shall be determined by an impartial appraisal
procedure pursuant to W.S.A. Ch. 788, wherein the grantee and the
City shall each choose an appraiser and the appraisers chosen shall
choose a third appraiser and the price determined by such appraisers
shall be considered the equitable price at which the system will be
offered to the City. The determination of the price of the system
shall be decreased by the amount of any damages sustained by the City
in connection with revocation, including, without limitation, payment
made by the City to another person or entity to operate the CCS for
a temporary period after revocation. The cost of the appraisal procedure
shall be shared equally by the City and grantee.
(c)
The City shall have 90 days commencing on the day the equitable
price of the system is determined, either through negotiation or the
appraisal procedure, to exercise its option to purchase. If the City
does not exercise its option to purchase, and the CCS is not sold
to another operator who has obtained a franchise from the City, the
grantee, upon request by the City, shall promptly remove all its plant,
structures and equipment. While transfer of the system and franchise
is being negotiated, arranged or ordered, the grantee may be required
to continue service to the public unless for reasons beyond the control
of the grantee such operation will be economically infeasible to the
grantee.
(5)
Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances, without affecting the electric or telephone cables, wires or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance and indemnity provided in § 15.16 and the performance bond in § 15.18 shall continue in full force and effect during the period of removal.
(6)
Restoration by City; reimbursement of costs. If the grantee fails to complete any work required by Subsection (5) above or any work required by City law or ordinance within the time established and to the satisfaction of the City, the City may cause such work to be done, and the grantee shall reimburse the City the costs thereof within 30 days after receipt of an itemized list of such costs or the City may recover such costs as provided in § 15.18.
(7)
Expiration; extended operation. Upon the expiration of the franchise,
the City may, by resolution, on its own motion or request of the grantee,
require the grantee to operate the franchise for an extended period
of time not to exceed six months from the date of any such resolution.
All provisions of the franchise shall continue to apply to operations
during an extension period. The City shall serve written notice at
least 30 days prior to expiration of the original franchise or any
extensions thereof.
(1)
Continuing regulatory jurisdiction. The City shall have continuing
regulatory jurisdiction and supervision over the operation of the
franchise and may from time to time adopt such reasonable rules and
regulations as it deems necessary for the conduct of the business
contemplated thereunder.
(2)
Regulatory Council. The continuing regulatory jurisdiction of the City shall be exercised through the Regulatory Council. The Council shall have the responsibilities and duties set forth in § 15.03.
(3)
Regulatory procedures. The Regulatory Council shall consider
any inquiry or proceeding required City Council action in accordance
with normal City Council procedures.
(4)
Failure to enforce provisions. The grantee shall not be excused
from complying with any of the terms and conditions of the franchise
by any failure of the City upon one or more occasions to insist upon
or to seek compliance with any such terms of conditions.
(5)
Contravention of provisions. The City may, at its option, and in its sole discretion, impose a penalty of $5,000 on a grantee whose action or failure to act causes the City to bring a court action to enforce any provision of this chapter or the franchise agreement, provided that the City's enforcement action is successful. The penalty, if assessed, will be paid by the grantee at the same time as the next franchise payment would be made pursuant to § 15.15 of this chapter.
(1)
Annual financial reports required. The grantee shall file annually
with the City Clerk, not later than three months after the end of
its fiscal year during which it accepted the franchise and within
three months after the end of each subsequent fiscal year, two copies
of:
(a)
The report to its stockholders;
(b)
An income statement identifying revenues, expenses and income
applicable to its operations under the franchise during the fiscal
year or fraction thereof; and
(c)
A listing of its properties devoted to operation of the cable
system within the City, together with an itemization of its investment
in each of such properties on the basis of original cost, less depreciation.
These reports shall include a balance sheet, listing of substantial
liabilities and such other reasonable information as the City may
request, and shall be certified by a certified public accountant.
(2)
Annual facilities report. Upon request, the grantee shall file
with the City Clerk, within 30 days, two copies of a total facilities
report setting forth the total physical miles of plant installed or
in operation during the fiscal year, a map showing the location of
same and a current annual statement of cost of construction by component
category.
(3)
Annual service record report. Upon request, the grantee shall
file with the City Clerk, within 30 days, two copies of a list of
all trouble complaints and system "downtime" received or experienced
during the fiscal year. All such submitted data shall also include
complaint disposition and response time. For the purposes of this
provision, certified copies of a "complaint" logbook reflecting all
such incidents will suffice. Also, if requested by the City, uncertified
additions to the annual complaint log shall be supplied in two copies
to the City at intervals of not more than 90 days following the filing
of the annual report.
(4)
Annual measurements report. Upon request, the grantee shall
file with the City Clerk, within 30 days, two copies of a report on
the system technical measurements.
(5)
Annual operations reports. Upon request, the grantee shall file
with the City Clerk, within 30 days, two copies of the following supplemental
information:
(a)
If a nonpublic corporation, a list of all current shareholders
and bondholders both of record or beneficial. If a public corporation,
a list of all shareholders who individually or as a concerted group
hold 5% or more of the voting stock of the corporation.
(b)
A current list of all grantee's officers and directors,
including addresses and telephone numbers.
(c)
Copies of all pertinent agreements or contracts, including pole
use agreements, entered into by the grantee during the fiscal year
in the conduct of its business under a franchise granted hereunder.
(d)
The names and both business and residential addresses and telephone
numbers of the CCS resident manager and engineer.
(e)
Two copies of all types of subscriber agreements. Copies of
individual subscribers' agreements are not to be filed with the
City.
(f)
Copies of all rules and regulations promulgated by the grantee during the fiscal year in the conduct of its business in accordance with the provisions of § 15.10.
(g)
A copy of the annual report of the parent firm which owns an
interest of more than 5% or more of the voting stock of the grantee,
and such other annual report of subsidiaries or divisions of the parent
firm as the City deems necessary.
(6)
Annual projected plans report. Projected plans for the future,
including a projected plan of construction for the next two years.
(7)
Registration with the Federal Communications Commission. The
grantee shall give formal notice to the City that it is registering
with the FCC. Within five calendar days upon filing such registration
with the FCC, the grantee shall file two copies of its registration
with the City Clerk.
(8)
Public availability of reports. Such reports as required under
this chapter must be available to the public in the office of the
City Clerk, during normal business hours. Subscribers shall be notified
of the availability of such reports in ways approved by the Regulatory
Council.
(9)
Correspondence. The grantee shall simultaneously file with the
City Clerk a copy of each petition, application and communications
transmitted by the grantee to, or received by the grantee from, any
federal, state or other regulatory commissions or agencies having
competent jurisdiction to regulate and pertaining to the operations
of the CCS.
(10)
City's access to records.
(a)
The City reserves the right during the life of the franchise
to have access, including the right to copy, at all normal business
hours and upon the giving of reasonable notice, to the grantee's
contracts, engineering plans, accounting, financial data and service
records relating to the property and the operations of the grantee
and to all other records required to be kept hereunder. Nothing contained
herein shall prevent the grantee from enjoining the City from reviewing
documents relating to proprietary interests not related to its operation
under this chapter in the City's regulatory program.
(b)
Records of subscriber lists and statistical data not otherwise
required by this chapter shall be made available only upon a ruling
by a judge of competent jurisdiction that such records are material
to the City's regulatory program.
(11)
Grantee's agreements. The form of grantee's agreements
with its subscribers shall be subject to the approval of the City
Council, and two copies of all types of agreements used by the grantee
shall be filed and maintained with the City Clerk.
(1)
Acceptance fee for the initial franchise. Upon the grant of
an initial franchise, the grantee shall reimburse the City for all
reasonable costs, including, but not limited to, publication fees
incurred by the City relating to the grant of the initial franchise.
(2)
Annual franchise payment. The grantee shall pay to the City
a franchise fee in the amount of 5% of the grantee's gross revenues.
In the event that the City decides to increase the franchise fee in
accordance with state or federal law above 5% of the grantee's
gross revenues, the grantee shall not be liable for such increase
until the City shall give grantee written notice of such desire to
change franchise fees. The franchise fee payment shall be in addition
to any other payment owed to the City by the grantee and shall not
be construed as payment in lieu of municipal property taxes or other
state, county or local taxes. The annual franchise fee shall be paid
to the City Clerk as follows:
[Amended 3-7-2001 by Ord. No. 1486]
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Revenue for January through March shall be paid by April 30
of each calendar year. Revenue for April through June shall be paid
by July 31 of each Calendar year. Revenue for July through September
shall be paid by October 31 of each calendar year. Revenue for October
through December shall be paid by January 31 of each calendar year.
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(3)
Method of computations; interest.
(a)
Sales taxes or other taxes levied directly on a per-subscription
basis and collected by the grantee shall be deducted from the local
annual gross revenues before computation of sums due the City is made.
Payments due the City under the provisions of Subsection (2) above
shall be computed and paid in annual installments. Payments shall
be made to the City of Shawano before the last day of March and shall
be paid at the Office of the City Clerk during his or her regular
business hours. The payment period shall commence as of the effective
date of the franchise or any renewal date. The City shall be furnished
a statement with each payment, reflecting the local amounts of annual
gross revenues, and the above charges, deductions and computations,
for the annual payment period covered by the payment.
(b)
If any payment is not made as required, interest on the amount
due, as determined from the annual gross revenues as computed, shall
accrue from the date of the required submittal at an annual rate of
12%. The grantee shall pay an additional compensation to the City
if the payment is late by 45 days or more. Such additional compensation
shall be equal to 2% of the amount due in order to defray those additional
expenses and costs incurred by the City by reason of the delinquent
payment.
(c)
The percentages designated in this section may be amended no
more than once each year by the City Council, consistent with increased
costs for municipal facilities and supervision and applicable rules
of other regulatory agencies.
(4)
Rights of recomputation. No acceptance of any payment by the
City shall be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable
as a franchise fee under this chapter or for the performance of any
other obligation of the grantee. All amounts paid shall be subject
to audit and recomputation by the City.
(5)
Alternative fee basis. In the event the franchise fee or payment
established under this chapter is ruled unconstitutional or unenforceable,
the City may impose and collect an equivalent charge on any legally
permissible basis, provided that such charge does not exceed the previously
allowed limit on franchise fees or payments.
(1)
Indemnification of franchise. The grantee shall, by acceptance
of any franchise granted pursuant to this chapter, save the City harmless
from all loss sustained by the City on account of any suit, proceeding
judgment, execution, claim or demand which the City may legally be
required to pay as a result of the enactment of this chapter and the
award of the franchise.
(2)
Indemnification of City in franchise operation. The grantee
shall, by acceptance of any franchise granted pursuant to this chapter
and franchise agreement, save the City and its agents and employees
harmless from and against all claims, damages, losses and expenses,
including attorney's fees sustained by the City on account of
any suit, proceeding judgment, execution, claim or demand whatsoever
arising out of but not limited to copyright infringements and all
other damages arising out of the installation, operation or maintenance
of the CCS authorized herein, whether or not any act or omission complained
of is authorized, allowed or prohibited by this chapter. This provision
shall not apply to acts of the City, its agents or employees.
(3)
Reimbursement of costs. The grantee shall, by acceptance of any franchise granted pursuant to this chapter, pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in Subsections (1) and (2) above. These expenses shall include all out-of-pocket expenses, such as consultants or attorney fees, and shall also include the reasonable value of any services rendered by the City Attorney or his or her staff or any other employee of the City.
(4)
Liability insurance. The grantee shall maintain throughout the term of the franchise, and any extensions thereto, or as required in § 15.12 herein, the insurance policies described below. Such policies shall name as the additional insured the City, its officers, Councils, commissions, agents and employees, shall be primary to any insurance carried by the City, and shall be obtained from a company or companies approved by the Regulatory Council and in a form satisfactory to the Council. Such policies shall be in amounts at least as follows:
(a)
Comprehensive general liability insurance. General comprehensive
liability insurance containing the following coverages: premises/operations;
products/completed operations; broad form property damage; contractual
liability; coverage for explosion, collapse and underground hazards;
and pollution control liability. The policy shall include limits of
not less than $1,000,000 for bodily injury (including death) and property
damage for each occurrence of not less than $2,000,000 in the aggregate.
(b)
Workers' compensation. Workers' compensation insurance
in compliance with W.S.A. s. 102.31 and in compliance with the laws
of each state having jurisdiction over each employee.
(c)
Comprehensive automobile liability. Comprehensive automobile
liability, including owned, nonowned and hired vehicles, with limits
of not less than $1,000,000 for bodily injury (including death) and
$1,000,000 for property damage for each occurrence.
(d)
Umbrella liability. Umbrella liability with limits of not less
than $8,000,000, which shall carry the following endorsement: It is
hereby understood and agreed that, despite anything to the contrary
where underlying insurance, as described herein, provides greater
protection or indemnity to the insured than the terms and conditions
of this policy, this insurance shall pay on behalf of the insured
the same terms, conditions and coverages which apply to the basic
underlying insurance. Where no such broader underlying insurance exists,
this policy shall pay on behalf of the insured upon terms and conditions
and limitations of the carrier's umbrella excess policy.
(5)
Notice of cancellation or reduction of coverage. The insurance
policies mentioned above shall contain an endorsement stating that
the policies are extended to cover the liability assumed by the grantee
under the terms of this chapter and shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled,
materially changed, nor coverage reduced, until 30 days after receipt
by the City Clerk by registered mail of two copies of a written notice
of such intent to cancel, materially change or reduce the coverage.
(6)
Evidence of insurance filed with City insurance advisor. All
original policies of insurance and written evidence of payment of
required premiums shall be filed in the City Clerk's office,
with certified copies thereof being filed with the City's insurance
advisor.
(7)
No waiver of performance bond. Neither the provisions of this
chapter nor any insurance accepted by the City pursuant hereto, nor
any damages recovered by the City thereunder, shall be construed to
excuse faithful performance by the grantee or limit the liability
of the grantee under this franchise or for damages, either to the
full amount of the bond or otherwise.
(1)
Proposal bond required. Each applicant for an initial franchise
hereunder shall submit a proposal bond in a form acceptable to the
City Attorney or a certified check on a bank that is a member of the
Federal Deposit Insurance Corporation, payable to the order of the
City in the amount of $10,000.
(2)
Forfeit of proposal bond. Should the applicant fail or refuse to accept a franchise hereunder or fail or refuse to furnish the performance bond as set forth in § 15.18 within 30 days after written notification of the award of a franchise by the City, such applicant will be considered to have abandoned the proposal, and the City shall enforce the proposal bond in accordance with its terms or to retain the proceeds of the certified check.
(3)
Return of proposal bond. Proposal bonds or certified checks
received in lieu thereof from applicants whose proposals are not accepted
by the City shall be returned to the applicant as soon as the proposal
is rejected.
(4)
Bond evidence to be filed with City. Two copies of all bonds
or certified copies thereof and written evidence of payment of required
premium shall be filed and maintained with the City Clerk during the
term of any franchise granted hereunder or any renewal thereof.
(1)
In the event of the construction of a new cable system, or if
required by the franchise agreement, or upon the rebuilding of all
or a major part of the current cable communications system, a faithful
performance bond running to the City in the penal sum of not to exceed
$100,000, conditional upon the faithful performance of the grantee
of the pledged construction or system rebuilt, shall be maintained
throughout the period of construction until the project is judged
completed by the Shawano Municipal Utilities Commission.
(2)
Two copies of the performance bond or certified copies thereof
and written evidence of payment of required premium shall be filed
and maintained with the City Clerk.
(1)
Establishment of rates. The grantee shall establish rates for
its services which shall be applied on a nondiscriminatory basis in
the service area, except for commercial and bulk account rates, which
are negotiated individually. Pursuant to federal law, the City reserves
the right to assume regulation of rates paid by cable subscribers;
if so assumed, such rate regulation shall be performed by the City
Council in accordance with FCC Rules and Regulations Part 76, Subpart
N. As specified by the FCC's Rules (Part 76, Subpart N), such
rate regulation shall cover basic service rates and customer premises
installations and equipment rates (including charges for, but not
limited to, converter boxes, remote control units, connections for
additional television receivers and other cable home wiring).
(2)
Reservation of right to regulate rates. The City reserves the
right to further regulate rates pursuant to any additional powers
granted it by either the FCC or federal or state law.
(3)
Rate regulation procedures. In the event that the City assumes
rate regulatory powers pursuant to the Cable Act, the following shall
apply:
(a)
Initial procedures. The City shall notify the grantee of the
City's FCC certification and of the City's adoption of rate
regulations which are consistent with the FCC regulations and which
provide for a reasonable opportunity for consideration of the views
of interested parties. Upon receipt of such notification by the grantee,
basic service regulation shall become effective. The grantee shall
be prohibited from raising basic service rates without the approval
of the City Council, and the grantee shall, within 30 days, submit
for review its basic service, installation and equipment rates and
supporting documentation using either the FCC's benchmark calculations
or the FCC's cost-of-service standards.
(b)
Proprietary information. To aid in the evaluation of the grantee's
proposed rates, the City Council may require the production of proprietary
information, and in such cases will apply procedures analogous to
those set forth in FCC regulations, and consistent with federal and
state law.
(c)
Refunds. As specified in the FCC regulations, the City Council
may order the grantee to refund to subscribers that portion of previously
paid rates which have been found to be unreasonable. Before ordering
the grantee to refund previously paid rates to subscribers, the City
Council shall give the grantee notice and opportunity to comment.
(d)
Basic service rate increases and equipment charges. The grantee
shall not file for increases in equipment charges and/or basic service
rates more often than allowed under FCC regulations. All subsequent
requests by the grantee for increases in equipment charges and/or
basic service rates shall be subject to the procedures outlined in
this section.
(e)
Service disconnection. A subscriber shall have the right to
have its service disconnected without charge, except such charges
as may be allowable under FCC rules or state or federal law, which
shall include the removal of any equipment owned by the grantee from
the subscriber's residence. Such disconnection shall be made
as soon as practicable and in no case later than 30 days following
written notice to the grantee of same. No grantee shall enter into
any agreement with a subscriber which imposes any charge following
disconnection of service, except for reconnection and subsequent monthly
or periodic charges, and those charges shall be no greater than charges
for new customers. This section shall not prevent a grantee from refusing
service to any person because of the grantee's prior accounts
with that person which remain due and owing.
(1)
Services provided. The grantee shall provide, at a minimum,
the initial services listed in the franchise agreement. Such services
shall include, but not be limited to, basic cable service and additional
services, as defined herein. Services shall not be reduced without
prior notification to the City.
(2)
Facilities and equipment provided. The grantee shall provide,
at a minimum, the initial facilities and equipment listed in the franchise
agreement.
(3)
Public, educational and government (PEG) access facilities.
The grantee shall provide the PEG access facilities, including channel
capacity, necessary interface equipment and cabling to permit operation
as specified in the franchise agreement.
(4)
Programming provided. The grantee shall provide, at a minimum,
the categories of video programming listed in the franchise agreement.
(5)
Local origination channels. If local origination programming
is provided, the grantee shall operate any cable casting studios on
a high-quality, professional basis for the purpose of providing cable
cast programming responsive to local needs and interests.
(6)
Cable channel for commercial use. The grantee shall designate
channel capacity for commercial use as required by the Cable Act and
applicable law.
(1)
System extension in annexed areas. The grantee shall extend
its cable system to provide full service to all residents of newly
annexed areas within a reasonable length of time after such annexation,
not to exceed six months, where a density of 25 potential subscribers
per cable mile can be obtained. Notwithstanding the density requirement,
the grantee shall extend and make available cable communicating services
to any dwelling unit within 300 feet of existing cable plant.
(2)
System extension across City boundaries.
(a)
Before any subscriber located in a community other than the
City is allowed to connect to the CCS, the grantee shall be capable
of furnishing service to a substantially completed system for City
residents unless a waiver of this section has been granted by the
City Council.
(b)
A written waiver request must be made 30 days before requesting
an appearance before the City Council. Such waiver request shall clearly
state the potential impact of such occurrence on the operations and
finances of the grantee, the costs of such an extension and who is
to bear such costs, and any anticipated interconnection with such
institutions, within the area to be served by such system extension.
(c)
If permission is granted by other jurisdictions, the grantee
shall extend the system or cooperate with other grantees in those
jurisdictions to provide service to institutions pursuant to this
chapter, only upon approval of the City Council.
(1)
Initial filings.
(a)
It is hereby deemed in the public interest that the system be
extended as rapidly as possible to all citizens within the City with
a density of 25 potential subscribers per cable plant line mile. Within
30 days of the effective date of this chapter, the grantee shall file
with the appropriate authorities and utilities all initial papers
and applications necessary to comply with the terms of this chapter,
including the proposal for franchise and any additions or amendments
thereto and shall thereafter diligently pursue all such applications.
(b)
After the grantee has diligently pursued the acquisition of
necessary pole attachment contracts, or other necessary easements,
and where such necessary contracts have not been executed or easements
obtained after a reasonable period of time as determined by the City,
the City may, at its discretion, provide assistance to ensure the
extension of the system to all citizens.
(2)
Commencement of construction. Within 120 days of the effective
date of FCC registration, the grantee shall initiate construction
and installation of the CCS. Such construction and installation shall
be pursued with reasonable diligence.
(3)
Commencement of operation. Within 14 months of the effective date of FCC registration, the grantee shall commence operation within the meaning set forth in § 15.02 of this chapter.
(4)
Substantial completion of construction. Within 14 months of the effective date of FCC registration, the grantee shall have substantially completed construction of the service area within the meaning set forth in § 15.02 of this chapter.
(5)
Provision of basic service. Within 24 months of the effective
date of FCC registration, the grantee shall have placed in use sufficient
distribution facilities so as to offer basic service to 100% of the
dwelling units in the City, subject to the density standard of 25
units per cable plant line mile.
(6)
Delays and extension of time. The City may, in its discretion,
extend the time for grantee, acting in good faith, to perform any
act required hereunder. The time for performance shall be extended
or excused, as the case may be, for any period during which grantee
demonstrates to the satisfaction of the City Council that grantee
is being subjected to delay or interruption due to any of the following
circumstances if reasonably beyond its control:
(1)
Additional standards may be imposed. Nothing in this chapter
shall be construed to prohibit the grantee and City from agreeing
to exceed the customer service standards set out in this chapter or
the establishment or enforcement of any state or local law or regulation
concerning customer service or consumer protection that imposes customer
service standards or consumer protection requirements that exceed
the customer service standards set out in this chapter or address
matters not addressed in this chapter.
(2)
Telephone availability.
(a)
The grantee shall maintain a local, toll-free or collect call
telephone access line which will be available to its subscribers 24
hours a day, seven days a week. Trained representatives of the grantee
will be available to respond to customer telephone inquiries during
normal business hours. After normal business hours, the access line
may be answered by a service or an automated response system, including
an answering machine. Inquiries received after normal business hours
must be responded to by a trained representative of the grantee on
the next business day.
(b)
Under normal operating conditions, telephone answer time by
a customer representative, including wait time, shall not exceed 30
seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed 30 seconds. These standards shall be
met no less than 90% of the time under normal operating conditions,
measured on a quarterly basis.
(c)
The grantee shall not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear
failure to comply.
(d)
Under normal operating conditions, the customer will receive
a busy signal less than 3% of the time.
(3)
Installations, outages and service calls. Under normal operating
conditions, each of the following four standards shall be met by the
grantee no less than 95% of the time measured on a quarterly basis:
(a)
Standard installations will be performed within seven business
days after an order has been placed. "Standard" installations are
those that are located up to 150 feet from the existing distribution
system.
(b)
Excluding conditions beyond the control of the grantee, the
grantee shall begin working on service interruptions promptly and
in no event later than 24 hours after the interruption becomes known
to the grantee. The grantee must begin actions to correct other service
problems the next business day after receiving notification of the
service problem.
(c)
The appointment window alternatives for installations, service
calls and other installation activities will be either a specific
time or, at maximum, a four-hour time block during normal business
hours. (The grantee may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.)
(d)
The grantee may not cancel an appointment with a customer after
the close of business on the business day prior to the scheduled appointment.
If the grantee's representative is running late for an appointment
with a customer and will not be able to keep the appointment as scheduled,
the customer will be contacted. The appointment will be rescheduled,
as necessary, at a time which is convenient for the customer.
(4)
Repair standards. The grantee shall maintain a repair force
of technicians who, under normal operating conditions, are capable
of responding to subscriber requests for service within the following
time frames:
(a)
Systems service interruption. Under normal operating conditions,
within two hours, including weekends, of receiving subscribers'
calls which, by number, identify a system service interruption of
sound or picture on one or more channels affecting all the subscribers
of the system or 2% thereof.
(b)
Isolated service interruption. Within 24 hours, including weekends,
of receiving requests for service identifying an isolated service
interruption (less than 2% of subscribers) of sound or picture for
one or more channels. This standard shall be met no less than 95%
of the time, measured on a quarterly basis.
(c)
Inferior reception quality. Within 48 hours, including weekends,
of receiving a request for service identifying a problem concerning
picture or sound quality.
(d)
The grantee shall be deemed to have responded to a request for
service under the provisions of this section when a technician arrives
at the service location and begins work on the problem. In the case
of a subscriber not being home when the technician arrives, response
shall be deemed to have taken place if the technician leaves written
notification of arrival.
(5)
Notification of service interruption to City Clerk.
(a)
The grantee shall promptly notify the City Clerk, in writing,
or, if appropriate, by oral communication, of any significant interruption
in the operation of the system. For the purposes of this section,
a "significant interruption in the operation of the system" shall
mean any interruption of sound or picture on one or more channels
of a duration of at least 24 hours to at least 5% of the subscribers.
(b)
Interruption of service; notification. The grantee, whenever
it is necessary to interrupt service over the CCS for the purpose
of maintenance alteration or repair, shall do so at such times as
will cause the least amount of inconvenience to the subscribers, and
unless such interruption is unforeseen and immediately necessary,
the grantee shall give reasonable notice thereof to the affected subscribers.
(6)
Subscriber credit for service interruptions. Upon service interruption
of the subscriber's cable service, the following shall apply:
(a)
For service interruptions of over four hours and up to seven
days, the grantee shall provide a credit to the subscriber of 1/30
of one months' fee for affected service for each twenty-four-hour
period service is interrupted for four or more hours.
(b)
For service interruptions of seven days or more in one month,
the grantee shall provide a credit based on the hourly rate the subscriber
pays for all monthly service and the number of hours of the service
interruption.
(7)
Upgrading of facilities and service. The grantee shall upgrade
its facilities and service as subscribers' demands dictate so
that its system is as advanced as the current state of technology
with field-proven equipment will allow.
(8)
Subscriber information.
(a)
Operating policies. As subscribers are connected or reconnected
to the cable system, and at least annually to all subscribers, and
at any time upon request, the grantee shall provide each subscriber
with written information concerning products and services offered,
prices and options for programming services and conditions of subscription
to programming and other services, installation and service maintenance
policies, instructions on how to use the cable services, channel positions
of programming carried on the system, the procedures for billing and
making inquiries or complaints (including the name, address and local
telephone number of the employee or employees or agent to whom such
inquiries or complaints are to be addressed) and also furnish information
concerning the City office responsible for administration of the franchise,
including the name and telephone number of the office. The notice
shall also indicate the grantee's business hours, legal holidays
and procedures for responding to inquiries after normal business hours.
The grantee shall provide all subscribers and the City written notice
no less than 30 days prior to any proposed change in these policies.
(b)
Rates, programming service and channel position. A grantee,
under normal operating conditions, shall provide all subscribers and
the City with notice of any change in rates, programming services
or channel position at least 30 days prior to the change(s) through
announcements on the cable system and in writing.
(c)
Copies to the City. Copies of all notices provided to subscribers
shall be filed concurrently with the City.
(9)
Subscriber billing practices.
(a)
Billing.
1.
Bills shall be clear, concise, understandable and shall include
the grantee's toll-free or collect telephone number for subscriber
use. Bills shall be fully itemized, with itemizations including, but
not limited to, basic and premium service charges and equipment charges.
Bills shall also clearly delineate all activity during the billing
period, including optional charges, rebates and credits. In case of
a billing dispute, the grantee shall respond to a written complaint
from a subscriber within 30 days. Refund checks will be issued promptly,
and no later than either:
2.
Credits for service shall be issued no later than the customer's
next billing cycle following the determination that a credit is warranted.
(b)
Late charges. The account of a subscriber shall not be considered
delinquent until at least 30 days have elapsed from the due date of
the bill, which shall be a date certain. The following provisions
shall apply to the imposition of late charges on subscribers:
1.
The grantee shall not impose a late charge on a subscriber unless
the subscriber's account is delinquent, the grantee has given
the subscriber written notice of the delinquency in a clear and conspicuous
manner, and the subscriber has been given at least eight business
days from the mailing of the notice to pay the balance due.
2.
A late charge of not more than $5 may be imposed monthly.
3.
No late charge may be assessed on the amount of a bill in dispute
if found in favor of the subscriber.
4.
Any charge for returned checks shall be reasonably related to
the costs incurred by the grantee in processing such checks.
(1)
Standards. The CCS shall be designed, constructed and operated
so as to meet those technical and performance standards set forth
in the franchise agreement and as required by the FCC's rules
and regulations relating to cable television systems and found in
47 CFR 76.601 to 76.618, as amended, or as may, from time to time,
be amended.
(2)
Tests and compliance procedures. The grantee shall submit, within
60 days after the effective date of the franchise agreement, a detailed
test plan describing the methods and schedules for testing the CCS
on an ongoing basis to determine compliance with this chapter and
the franchise agreement. The tests for basic cable service shall be
performed at intervals no greater than 12 months. The tests may be
witnessed by representatives of the City, and the grantee shall submit
written test reports to the City. If more than 10% of the locations
tested fail to meet the performance standards, the grantee shall be
required to indicate what corrective measures have been taken, and
the entire test shall be repeated. Failure to take corrective action
may be considered a breach of the franchise.
(3)
Additional testing. At any time after commencement of service
to subscribers, the City may require the grantee to perform additional
tests, full or partial repeat tests, or tests involving service to
a specific subscriber. Such additional tests will be made on the basis
of complaints received or other evidence indicating an unresolved
controversy or significant noncompliance with the technical standards
established in this chapter and the franchise agreement.
(1)
Compliance with safety codes. All construction practices shall
be in accordance with all applicable sections of the Occupational
Safety and Health Act of 1970 and any amendments thereto, as well
as all state and local codes, where applicable.
(2)
Compliance with electrical codes. All installation of electronic
equipment shall be of a permanent nature, durable and installed in
accordance with the applicable sections of the then-current edition
of the National Electric Safety Code and all state and local codes,
where applicable.
(3)
Antennas and towers. Antenna supporting structures (towers)
shall be designed for the proper loading zone as specified in Electronics
Industry Association's P.S.-22A Specifications.
(4)
Compliance with aviation requirements. Antenna supporting structures
(towers) shall be painted, lighted, erected and maintained in accordance
with all applicable rules and regulations of the Federal Aeronautical
Agency, the State Aeronautics Council, governing the erection and
operation of supporting structures or television towers, and all other
applicable local or state codes and regulations.
(1)
Approval of proposed construction.
(a)
The grantee shall first obtain the approval of the City prior
to commencing construction on the streets, alleys, public grounds
or places of the City. Applications for approval of construction shall
be in a form provided by the City.
(b)
The right of construction, including easements, is not implied
except on locations where the City has the authority to grant such
rights and easements and then only in conformity with the provisions
of this chapter. All other rights of construction, including easements,
shall be the responsibility of the grantee.
(2)
Excavation permits. The grantee shall not open or disturb the
surface of any street, sidewalk, driveway or public place for any
purpose without first having obtained a permit to do so in the manner
provided by code.
(3)
Changes required by public improvements. The grantee shall,
at its expense, protect, support, temporarily disconnect, relocate
in the same street or other public place, or remove from the street
or other public place, any property of the grantee when required by
the City by reason of traffic conditions, public safety, street vacation,
street construction, change or establishment of street grade, installation
of sewers, drains, water pipes, City-owned power or signal lines,
and tracts or any other type of structure or improvement by public
agencies.
(4)
Use of existing poles or conduits. Nothing in this chapter shall
authorize the grantee to erect and maintain in the City new poles
where existing poles are servicing the area. The grantee shall require
permission from the City before erecting any new poles, underground
conduit or appurtenances where none exist at the time the grantee
seeks to install its system.
(5)
Facilities not to be hazardous or interfere.
(a)
All wires, conduits, cables and other property and facilities
of the grantee shall be so located, constructed, installed and maintained
as not to endanger or unnecessarily interfere with the usual and customary
trade, traffic and travel upon the streets and public places of the
City.
(b)
The grantee shall keep and maintain all its property in good
condition, order and repair. The City reserves the right hereunder
to inspect and examine, at any reasonable time and upon reasonable
notice, the property owned or used, in part or in whole, by the grantee.
(c)
The grantee shall keep accurate maps and records of all its facilities and furnish copies of such maps and records as requested by the City under § 15.14.
(d)
The grantee shall not place poles or other equipment where they
will interfere with the rights or reasonable convenience of adjoining
property owners, or with any gas, electric or telephone fixtures or
with any water hydrants or mains. All poles or other fixtures placed
in a street shall be placed in the right-of-way between the roadway
and the property, as specified by the City.
(6)
Method of installation.
(a)
All wires, cables, amplifiers and other property shall be constructed
and installed in an orderly and workmanlike manner. All cables and
wires shall be installed parallel with existing telephone and electric
wires whenever possible. Multiple cable configurations shall be arranged
in parallel and bundled, with due respect for engineering and safety
considerations.
(b)
All installations shall be underground in those areas of the
City where public utilities providing both telephone or electric service
are underground at the time of installation.
(c)
In areas where both telephone and electric utility facilities
are aboveground, provided that at such time as those facilities are
required to be placed underground by the City or are placed underground,
the grantee shall likewise place its services underground without
additional cost to the City or to the residents of the City, other
than as may be reflected in rates charged to subscribers.
(7)
Protection of facilities. Nothing contained in this section
shall relieve any person, company or corporation from liability arising
out of the failure to exercise reasonable care to avoid injuring the
grantee's facilities while performing any work connected with
grading, regrading or changing the line of any street or public place
or with the construction or reconstruction of any sewer or water system.
(8)
Notice of City improvements. The City shall give the grantee
reasonable notice of plans for street improvements where paving or
resurfacing of a permanent nature is involved. The notice shall contain
the nature and character of the improvements, the streets upon which
the improvements are to be made, the extent of the improvements and
the work schedule for the project. The notice shall give the grantee
sufficient time to make any additions, alterations or repairs to its
facilities as it deems necessary in advance of the actual commencement
of the work, so as to permit the grantee to maintain continuity of
service.
(9)
Requests for removal or change. The grantee shall, on the request
of any person holding a building moving permit, temporarily raise
or lower its wires to permit the moving of such building. The expense
of such temporary removal, raising or lowering the wires shall be
paid by the person requesting the same, and the grantee shall have
the authority to require such payment in advance. The grantee shall
be given not less than 10 working days' notice of any move contemplated
to arrange for temporary wire changes.
(10)
Authority to trim trees on or overhanging public property.
(a)
The grantee shall have the authority to trim trees upon and
overhanging streets, alleys, sidewalks and other public places of
the City so as to prevent the branches of such trees from coming in
contact with the wires and cables of the grantee. All trimming is
to be done under the supervision and direction of the City after the
explicit, prior written notification and approval of the City and
at the expense of the grantee.
(b)
The grantee may contract for such services; however, any firm
or individual so retained shall receive City approval prior to commencing
such activity.
(c)
Required tree trimming on private property not affecting public
property must be negotiated between the grantee and the owner of the
private property.
(11)
Restoration or reimbursement.
(a)
In the event of disturbance of any street or private property
by the grantee, it shall, at its own expense and in a manner approved
by the City and the owner, replace and restore such street or private
property in as good a condition as before the work causing such disturbance
was done.
(b)
If the grantee fails to perform such replacement or restoration,
the City or the owner shall have the right to do so at the sole expense
of the grantee. Payment to the City or owner for such replacement
or restoration shall be immediate, upon demand, by the grantee. All
requests for replacement or restoring of such streets or private property
as may have been disturbed must be in writing to the grantee.
(12)
Office and records in City. The grantee shall at all times make
and keep at an office maintained by the grantee in the City full and
complete plans and records showing the exact location of all CCS equipment
installed or in use in the streets and other public places of the
City. Upon request, the grantee shall furnish the City a current map
or set of maps, drawn to scale, showing all CCS equipment installed
and in place in streets and other public places of the City.
(13)
Emergency removal of plant. If, at any time, in case of fire
or disaster in the City, it shall become necessary in the reasonable
judgment of the City to cut or move any of the wires, cables, amplifiers,
appliances or appurtenances thereto of the grantee, such cutting or
moving may be done and any repairs rendered necessary thereby shall
be made by the grantee, at its sole expense, provided that such repairs
are not necessitated by negligent act of the City, in which case,
cost for repairs shall be borne by the City.
(14)
Alternate routing of plant. If continued use of a street is
denied to the grantee by the City for any reason, the grantee will
make every reasonable effort to provide service over alternate routes.
(15)
Proportional expansion of construction. Any construction and
installation of plant by the grantee shall be performed in such a
way that the system is installed and made operational, roughly in
proportion to population, simultaneously on both sides of the City.
(1)
No prohibition of interconnection. Nothing in this chapter shall be construed so as to prohibit the grantee from interconnecting its system with other similar contiguous systems either in the City or in other municipalities, counties or states except as the provisions of § 15.21 apply.
(2)
Study required for interconnection.
(a)
The grantee shall, if requested by the City, unless owner of
the system to be interconnected with refuses such interconnection,
conduct a technical and economic feasibility study of any interconnection
requested by the City. The study shall be presented to the City, and
if the study shows such interconnection to be feasible, the grantee
shall, if so instructed by the City, accomplish such interconnection.
(b)
If the study indicates technical feasibility only, the City
may elect, but at its sole discretion, to arrange for compensation
to be paid to the grantee, in amount sufficient to assure an economic
break even by the grantee and so order the interconnection.
(c)
If the study fails to show technical feasibility, the grantee
shall have no further responsibility for accomplishing such interconnection
until such time as improvements in technology permit such interconnection.
(1)
Unauthorized connections prohibited. No firm, person, group,
company, corporation or governmental body or agency, without the expressed
consent of the grantee, shall make any connection, extension or division,
whether physically, inductively, electronically or otherwise, with
or to any segment of a franchised CCS for any purpose whatsoever,
except as may be provided in this chapter.
(2)
Removal or destruction prohibited. No firm, person, group, company,
corporation or governmental body or agency shall willfully interfere,
tamper, remove, obstruct or damage any part, segment or content of
a franchised CCS for any purpose whatsoever. This section shall in
no way impair or infringe upon rights presently enjoyed by utilities
in the City.
(3)
Violation. Any firm, person, group, company, corporation or
governmental body or agency convicted of a violation of this section
shall, for each offense, forfeit a sum of $100 for the first offense,
$250 for the second offense and $500 for the third offense, plus court
costs. Each twenty-four-hour period a violation continues shall be
considered a separate offense.[1]
(1)
Services to be equally available.
(a)
The grantee shall not refuse cable television service to any
person or organization who requests such service for lawful purpose,
nor shall a grantee refuse any person or organization the right to
cable cast pursuant to provisions of this chapter.
(b)
The grantee shall not, as to rates, charges, service facilities,
rules, regulations or in any other respect, make or grant any unreasonable
preference or advantage, nor subject any person to any prejudice or
disadvantage. The grantee shall comply at all time with the Cable
Act and all other applicable federal, state and local laws and regulations,
and all executive and administrative orders relating to nondiscrimination
which are hereby incorporated and made part of this chapter by reference.
(c)
This provision shall not be deemed to prohibit promotional campaigns
to stimulate subscription to the system or other legitimate uses thereof.
(2)
Fairness of accessibility. The entire system of the grantee
shall be operated in a manner consistent with the principle of fairness
and equal accessibility of its facilities, equipment, channels, studios
and other services to all citizens, businesses, public agencies or
other entities having a legitimate use for the system, and no one
shall be arbitrarily excluded from its use; allocation of use of such
facilities shall be made according to the rules or decisions or regulatory
agencies affecting the same, and where such rules or decisions are
not effective to resolve a dispute between conflicting users or potential
users, the matter shall be submitted for resolution by the Regulatory
Council.
(3)
Equal employment. The grantee shall strictly adhere to the equal
employment opportunity requirements of federal, state and local law
and regulations in effect on the date of the franchise grant, and
as amended from time to time.
(1)
Use of data from subscriber. The grantee, City or any person
shall not initiate or use any form, procedure or device for procuring
information or data from cable subscribers' terminals by use
of the cable system, without prior written valid authorization from
each subscriber so affected, except for purposes of routine maintenance
and monitoring of the system or to verify billing accuracy. "Valid
authorization" shall mean written approval from the subscriber for
a period of time not to exceed one year and shall not have been obtained
from the subscriber as a condition of service. Further, a grantee,
without such authorization, shall not activate and/or utilize any
television signal in any manner from the subscribers' premises.
In any case the subscriber shall retain the right to deactivate his
or her terminal.
(2)
Subscriber data. The City, the grantee or any person shall not,
without prior written valid authorization from each subscriber so
affected, provide any data identifying or designating subscribers.
Any data so authorized will be made available to the authorizing subscriber
in understandable fashion.
(1)
Lesser remedies. Nothing shall prohibit the City from invoking
lesser remedies than revocation for violations of the provisions of
this chapter or the franchise agreement, including the shortening
of the franchise term and imposing monetary damages as set out below.
(2)
Monetary damages. If, after notice to the grantee and opportunity
for hearing, the City determines that the grantee has failed to perform
any material obligation under this chapter or the franchise agreement,
or fails to do so in a timely manner, the City may, at its option
and in its sole discretion, assess monetary damages against the grantee
as provided in this section. This provision for assessment of damages
is intended to be separate and apart from the City's right to
enforce the provisions of the construction and performance bonds provided
for in this chapter and is intended to be in addition to any other
remedies. This provision is intended to provide compensation to the
City for actual damages.
(a)
For failure to comply with any of the customer service standards
adopted by the City in this chapter or set out in the franchise agreement,
the grantee shall pay to the City the sum of $200 for each day the
grantee fails to comply.
(b)
For failure to furnish, maintain or offer cable services to
any potential subscriber within the territorial limits of the City
upon order of the City, the grantee shall pay to the City the sum
of $200 for any such occurrence.
(c)
For failure to obtain or file evidence of required insurance
or other required financial security, the grantee shall pay to the
City the sum of the $300 for any such occurrence.
(d)
For failure to provide access to data documents, records or
reports to the City as required by this chapter, the grantee shall
pay to the City the sum of $100 for any such occurrence.
(e)
For failure to comply with applicable construction, operation
or maintenance standards, the grantee shall pay to the City the sum
of $300 for any such occurrence.
(f)
For failure to comply with a rate decision or refund order issued
by the City, the grantee shall pay to the City the sum of $500 for
any such occurrence.
If any section, subsection, sentence, clause, phrase or word
of this chapter is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such section, subsection,
sentence, clause, phrase or word shall be deemed a separate, distinct
and independent provision, and such holding shall not affect the validity
of the remaining portions hereof.
