[HISTORY: Adopted by the Board of County Commissioners of
Charles County 4-22-2002 by Ord. No. 2002-48. Amendments noted
where applicable.]
A.
Title. This chapter shall be known and may be cited as the "County
Cable Communications Regulatory Code."
B.
Effective date and repealer. This chapter shall take effect and be
in force from and after passage.
C.
Delegation of powers. The County may delegate the performance of
any act, duty, or obligation, or the exercise of any power, under
this chapter or any franchise agreement to any employee, officer,
department or agency of the County, except where prohibited by applicable
law.
A.
General definitions and usage. For the purposes of this chapter,
the following terms, phrases, words, and abbreviations shall have
the meanings given herein, unless otherwise expressly stated. When
not inconsistent with the context, words used in the present tense
include the future tense; words in the plural number include the singular
number, and words in the singular number include the plural number;
and the masculine gender includes the feminine gender. The words "shall"
and "will" are mandatory, and "may" is permissive. Unless otherwise
expressly stated, words not defined herein shall be given the meanings
set forth in Title 47 of the United States Code, as amended, and,
if not defined therein, their common and ordinary meanings.
B.
ACCESS CHANNEL
AFFILIATE
BOARD
CABLE ACT
CABLE OPERATOR
(1)
(2)
CABLE SERVICE
CABLE SYSTEM or SYSTEM
(1)
(2)
(3)
(4)
(5)
CHANNEL
CONVERTER
COUNTY
EDUCATIONAL ACCESS CHANNEL or EDUCATIONAL CHANNEL
FCC
FRANCHISE
FRANCHISE AGREEMENT
FRANCHISE AREA
FRANCHISEE
GOVERNMENTAL ACCESS CHANNEL or GOVERNMENTAL CHANNEL
INSTALLATION
INSTITUTIONAL NETWORK or NETWORK
LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL
PEG
PERSON
PUBLIC ACCESS CHANNEL
PUBLIC RIGHTS-OF-WAY
SECURITY FUND
SERVICE INTERRUPTION
SUBSCRIBER
SYSTEM UPGRADE
TRANSFER
(1)
(a)
(b)
(c)
(d)
(e)
(2)
(3)
USER
As used in this chapter, the following terms shall have the meanings
indicated:
Any channel on a cable system set aside by a franchisee for
public, educational, or governmental use.
Any person who owns or controls, is owned or controlled by,
or is under common ownership or control with a franchisee.
The Board of County Commissioners of the County.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq.[1]
A person or group of persons:
Which, directly or through one or more affiliates, provides
cable service and, directly or through one or more affiliates, owns
a significant interest in such a system; or
Which otherwise controls or is responsible for, through any
arrangement, the management and operation of such a cable system.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable television service which includes
video programming and which is provided to multiple subscribers within
the County, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
rights-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act,
except that such facility shall be considered a cable system if such
facility is used in the transmission of video programming directly
to subscribers;
An open video system that complies with 47 U.S.C. § 573;
or
Any facilities of any electric utility used solely for operating
its electric utility system.
A portion of the electromagnetic frequency spectrum that
is used in a cable system and that is capable of delivering a television
channel as defined by the FCC.
An electronic device which may serve as an interface between
a system and a subscriber's television receiver or other terminal
equipment, and which may perform a variety of functions, including
signal security, descrambling, electronic polling, frequency conversion
and channel selection.
Charles County, Maryland, and any agency, department, or
agent thereof.
Any channel on a cable system set aside by a franchisee for
educational use.
The Federal Communications Commission, its designee, or any
successor governmental entity thereto.
A nonexclusive authorization granted pursuant to this chapter
to construct, operate, and maintain a cable system along the public
rights-of-way to provide cable service within all or a specified area
of the County. Any such authorization, in whatever form granted, shall
not mean or include:
A contract entered into pursuant to this chapter between
the County and a franchisee that sets forth the terms and conditions
under which a franchise will be granted and exercised.
The area of the County that a franchisee is authorized to
serve by its franchise agreement.
A natural person, partnership, domestic or foreign corporation,
association, joint venture, or organization of any kind that has been
granted a franchise by the County.
Any channel on a cable system set aside by a franchisee for
government use.
The connection of a cable system from feeder cable to subscriber
terminals and the provision of service.
The meaning given to it in a franchisee's franchise
agreement.
Any channel on a cable system designated for commercial use
by a person unaffiliated with the franchisee.
Public, educational, and governmental.
An individual, partnership, association, joint-stock company,
organization, corporation, or any lawful successor thereto or transferee
thereof, but such term does not include the County.
Any channel on a cable system set aside by a franchisee for
use by the general public.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, waterway, easement, or
similar property within the County which, consistent with the purposes
for which it was dedicated, may be used for the purpose of installing
and maintaining a cable system.
A performance bond, letter of credit, or cash deposit, or
any or all of these, to the extent applicable to a given franchisee.
Loss of picture or sound on one or more channels, or degradation
of picture or sound beyond practically usable levels.
Any person who lawfully receives any service delivered over
a cable system.
A major improvement or enhancement in the technology or service
capabilities made by the franchisee to its cable system.
Any transaction in which:
An ownership or other right, title, or interest of more than
10% for voting interests or 20% for nonvoting interests in a franchisee
or its cable system is transferred, sold, assigned, leased, sublet,
or mortgaged, directly or indirectly, in whole or in part;
There is any change of control of a franchisee;
The rights or obligations held by a franchisee under the franchise
are transferred, directly or indirectly, to another party;
Any change or substitution occurs in the managing general partners
of a franchisee; or
A franchisee, or its corporate parent at any level, enters into
a transaction that materially increases, directly or indirectly, the
debt that is to be borne by the cable system in a manner that may
adversely affect system rates or services.
Does not include a transaction involving only persons who own,
are owned by, or are under common ownership with the franchisee if
the transaction does not materially affect the ultimate control of
the franchisee or the sources and amounts of funds available to the
franchisee.
"Control," for purposes of this definition, means the legal
or practical ability to exert actual working control over the affairs
of a franchisee, either directly or indirectly, whether by contractual
agreement, majority ownership interest, any lesser ownership interest,
or in any other manner.
A person or organization lawfully using a channel or equipment
and facilities for purposes of producing or transmitting material,
as contrasted with the purpose of receiving material in the capacity
of a subscriber.
[1]
Editor’s Note: The definition of “cable commission
or cable,” which immediately followed, was repealed 12-15-2015
by Bill No. 2015-07.
A.
Grant.
(1)
The County may grant one or more cable franchises, and each such
franchise shall be awarded in accordance with and subject to the provisions
of this chapter and applicable obligations of the County. Such franchises
shall be granted, and franchise agreements approved, by resolution
of the County Commissioners.
[Amended 9-17-2008 by Bill No. 2008-15]
(2)
This chapter is not a contract between the County and a franchisee,
and the County is not prohibited from amending any of the provisions
of this chapter. The County shall not modify the terms and conditions
of a franchise agreement by changes to this chapter enacted after
the effective date of the franchise agreement. Any amendments to this
chapter shall be consistent with state and federal law and shall not
abrogate any contractual rights of a franchisee contained in its franchise
agreement or impose any new obligations or duties on the franchisee
that would be inconsistent with that agreement.
[Amended 9-17-2008 by Bill No. 2008-15]
(3)
No person may construct or operate a cable system in the County without
a franchise granted by the County. No person may be granted a franchise
without having entered into a franchise agreement with the County
pursuant to this chapter.
B.
Term of franchise. No franchise shall be granted for a period of
more than 15 years, except that a renewal or extension may be granted
pursuant to applicable law.
C.
Franchise characteristics.
(1)
A franchise authorizes the use of public rights-of-way for installing
cables, wires, lines, optical fiber, underground conduit, and other
devices necessary and appurtenant to the operation of a cable system
to provide cable service within a franchise area, but does not expressly
or implicitly authorize a franchisee to provide service to, or install
a cable system on, private property without owner consent [except
for use of compatible easements pursuant to Section 621 of the Cable
Act, 47 U.S.C. § 541(a)(2)], or to use publicly or privately
owned conduits without a separate agreement with the owners.
(2)
A franchise shall constitute both a right and an obligation to provide
the cable services regulated by the provisions of the franchise agreement
and this chapter, except to the extent otherwise expressly provided
in the franchise agreement.
[Amended 9-17-2008 by Bill No. 2008-15]
(3)
A franchise is nonexclusive, and the County may grant additional
franchises for a cable system pursuant to this chapter, and such an
additional grant shall not operate to materially modify, revoke, or
terminate rights previously granted to a franchisee.
(4)
The privileges prescribed by a franchise shall not give the franchisee
priority with respect to the County's use or any other lawful
occupancy of the public rights-of-way.
(5)
Except to the extent otherwise expressly provided in a franchise
agreement, the County reserves the right to reasonably designate where
a franchisee's facilities are to be placed within the public
rights-of-way and to resolve any disputes among users of the public
rights-of-way.
[Amended 9-17-2008 by Bill No. 2008-15]
D.
Franchisee subject to other laws, police power.
(1)
In accepting a franchise, a franchisee:
(a)
Acknowledges that its rights under the franchise are subject
to the police powers of the County to adopt and enforce ordinances
necessary to the safety and welfare of the public; and
(b)
Agrees to comply with all applicable ordinances enacted by the
County under its police power, subject to any provisions specifically
addressing the County's police power in a franchise agreement.
[Amended 9-17-2008 by Bill No. 2008-15]
(2)
Nothing in a franchise agreement shall be deemed to waive the requirements
of generally applicable codes and ordinances of the County regarding
permits, zoning, fees to be paid, or the like.
(3)
No course of dealing between a franchisee and the County, or any
delay on the part of the County in exercising any rights hereunder,
or any acquiescence by the County in the actions of a franchisee that
are in contravention of such rights (except to the extent such rights
are expressly waived by the County) shall operate as a waiver of any
such rights of the County.
E.
Operation of a cable system without a franchise. Any person who occupies
the public rights-of-way of the County for the purpose of operating
or constructing a cable system and who does not hold a valid franchise
from the County shall be subject to all provisions of this chapter,
including but not limited to its provisions regarding construction
standards and franchise fees. In its discretion, the County at any
time may require such person to enter into a franchise agreement within
120 days of receipt of a written notice by the County that a franchise
agreement is required, unless the County in its sole discretion extends
such time period. If such person does not enter into a franchise agreement
acceptable to the County within such time period, the County may require
such person to remove its property and restore the area to a condition
satisfactory to the County within a reasonable time period, as the
County shall determine; remove the property itself and restore the
area to a satisfactory condition and charge the person the costs therefor;
and/or take any other action it is entitled to take under applicable
law, including filing for and seeking damages under trespass. In no
event shall a franchise be created unless it is issued by action of
the County and subject to a written franchise agreement.
F.
Acts at franchisee's expense. Any act that a franchisee is or
may be required to perform under this chapter, a franchise agreement,
or applicable law shall be performed at the franchisee's expense,
unless expressly provided to the contrary in this chapter, the franchise
agreement, or applicable law.
G.
Eminent domain. Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, the County's rights of
eminent domain to the extent to which they may apply to any public
utility or cable system.
A.
Availability of cable service. Subject to the provisions of its franchise
agreement, a franchisee shall offer cable service to all residences,
businesses and other structures within the franchise area, including
multiple-dwelling-unit buildings, whose owners or occupants request
cable service, except for multiple-dwelling-unit buildings to which
the franchisee cannot legally obtain access.
[Amended 9-17-2008 by Bill No. 2008-15]
B.
Continuity of service.
(1)
It is the right of each subscriber to continue receiving service
if the subscriber's financial and other obligations to the franchisee
are honored. If a franchisee elects to transfer the system, or the
County gives notice of intent to revoke or fails to renew the franchise,
the franchisee shall act so as to ensure that all subscribers receive
continuous, uninterrupted service. If there is a change of franchisee,
or if a new operator acquires the system, the original franchisee
shall cooperate with the County, new franchisee, or operator in maintaining
continuity of service to all subscribers. During any transition period,
the franchisee is entitled to the revenues for any period during which
it operates the system.
(2)
Except to the extent otherwise expressly provided in a franchise
agreement, if a franchisee fails to operate the system for seven consecutive
days without prior approval of the County or without just cause, the
County may operate the system or designate an operator until the franchisee
restores service under conditions acceptable to the County or a permanent
operator is selected. If the County is required to fulfill this obligation
for the franchisee, then during that time the County is entitled to
collect all revenues from the system. The franchisee shall reimburse
the County for all reasonable costs or damages in excess of the revenues
collected by the County that are the result of the franchisee's
failure to perform.
[Amended 9-17-2008 by Bill No. 2008-15]
[Amended 9-17-2008 by Bill No. 2008-15]
The provisions of this § 226-5 shall apply except to the extent otherwise expressly provided in a franchise agreement.
A.
System characteristics. A franchisee's cable system shall, at
all times during the franchise term, meet or exceed the following
requirements:
(1)
Compliance with FCC rules. All maintenance performed on the cable
system by the franchisee shall be in accordance with the FCC rules
and regulations governing the technical performance and operating
standards for such system.
(2)
No deterioration to access signals. The system shall be so constructed
and operated that any PEG access signals or leased access signals
will have the same general transmission quality as commercial services
on the system.
(3)
Industry-accepted equipment. The system shall use equipment generally
used in high-quality, reliable, modem systems of similar design, including,
but not limited to, backup power supplies capable of providing power
to the system for not less than two hours according to manufacturer's
reasonable specifications, in view of local conditions, in the event
of an electrical outage. The obligation to provide such backup power
supplies shall apply to the franchisee's head end, each fiber
optic node, and any other location(s) within the system necessary
to maintain service to subscribers for not less than two hours in
the event of an electrical outage, as described above. The franchisee
shall comply with all applicable laws and regulations concerning system
compatibility with subscribers' television receivers and/or videocassette
recorders.
(4)
Consumer equipment for lease or sale. Subject to applicable law or
regulation, a franchisee shall offer every subscriber, at uniform
prices and regardless of the level of service taken, the opportunity
to lease or buy converters that utilize wireless remote controls and
that allow subscribers to view a program on one channel while taping
a program on another channel.
(5)
Parental control. A franchisee shall ensure that means are available
to enable subscribers to block out audio and video on any undesired
channels on the system.
(6)
Program security. A system shall include equipment so that any pay-per-view
programming can only be activated by the positive action of a subscriber
using, for example, a private identification number or other individual
selection procedure.
(7)
Handicapped service. All closed-caption programming retransmitted
by a system shall include the closed-caption signal. For hearing-impaired
subscribers, a franchisee shall provide information concerning the
cost and availability of equipment to facilitate the reception of
all basic services for the hearing impaired. In addition, a franchisee
must make arrangements that will allow hearing-impaired customers
to contact the company by telephone, and will work cooperatively with
any services that allow hearing-impaired customers to contact the
franchisee by telephone. Upon request, a franchisee shall provide,
for purchase or lease at the lowest uniform price, a remote control
device to those subscribers who are mobility limited, or where a member
of the subscriber's household is mobility limited.
B.
Integration of advancements in technology. In addition to any upgrades
required in its franchise agreement, if a franchisee's franchise
agreement does not specifically provide for a midterm review, it shall
be the responsibility of a franchisee to periodically upgrade its
cable system to integrate advancements in technology as may be required
to meet the needs and interests of the community in light of the costs
thereof.
C.
System design review process.
(1)
At least 60 days prior to the date construction of any upgrade commencing
after the effective date of this chapter is scheduled to commence,
a franchisee shall provide a detailed system design and construction
plan, available for review by the County at the local office of the
franchisee, which shall include at least the following elements:
(a)
Design type, trunk and feeder design, and number and location
of hubs or nodes.
(b)
Distribution system equipment to be used.
(c)
Plans for standby power.
(d)
Longest amplifier cascade in system (number of amplifiers, number
of miles, type of cable/fiber).
(e)
Design maps and trunk tree maps for the system.
(2)
The system design will be shown on maps of industry standard scale
using standard symbology and shall depict all electronic and physical
features of the cable plant. The County may review the plan and, within
30 days of the date the plan is made available for County review,
submit comments to the franchisee. Within 15 days of receipt of the
comments, the franchisee shall submit a revised plan to the County,
either incorporating the comments or explaining why the comments were
not included. The County may take any appropriate action it is entitled
to take under this chapter, the franchise agreement, or other applicable
law if it believes the design plan fails to satisfy or is likely to
fail to satisfy the franchisee's obligations. The County's
review does not excuse any nonperformance under this chapter, the
franchise agreement or other applicable law.
D.
Periodic progress reporting. Following the commencement of construction
of a system upgrade or any similar major construction, every three
months until the construction is completed, a franchisee shall meet
with the County and provide an update on the progress of the upgrade
according to the franchisee's general plan, unless the County
waives such meeting. Upon request, the franchisee shall provide detailed
written reports to the County on the franchisee's progress in
construction.
(1)
Public notification. Prior to the beginning of any system upgrade
construction, and periodically during each phase, the franchisee shall
inform the public and its subscribers about the progress of the upgrade,
areas where construction crews will be working and any expected temporary
interruptions to existing services which may occur.
(2)
Delays in the system upgrade. A franchisee shall not be excused from
the timely performance of its obligation to begin and complete any
system upgrade within the times specified herein, except for the following
occurrences:
(a)
Any force majeure situation, as described herein;
(b)
Unreasonable failure or delay by the County to issue any permits
or permission upon a timely request submitted by the franchisee or
its contractor representative and tender of any required permit fee;
(c)
Delays beyond the control of the franchisee that the franchisee
could not reasonably have anticipated regarding the availability,
shipment and arrival of necessary equipment, cables, electronics or
hardware, protracted underground excavation, easement availability,
changes in contractors or contractor personnel, or any other valid
factor agreed to by the County as fully explained and reasonably justified
in writing to the County or its designee.
(3)
Consequences of delays. Absent a showing of excusable delay pursuant to Subsection D(2) above, should a franchisee be unable to demonstrate the commencement or timely completion of the system upgrade by the times specified herein, or be unable to reasonably justify any delays, then the franchisee shall be in violation of a material provision of its franchise agreement and the County may, in its sole discretion, either grant the franchisee an extension of time to complete such construction or implement any enforcement measures specified in its franchise agreement or this chapter, including, but not limited to, revocation of the franchise.
E.
Technical standards. A cable system shall meet or exceed the technical
standards set forth in 47 CFR 76.601 and any other applicable technical
standards, including any such standards as hereafter may be amended
or adopted by the County subject to applicable federal law.
F.
Types of service. Any change in programs or services offered shall
comply with all lawful conditions and procedures contained in its
franchise agreement and in applicable law. A franchisee shall provide
30 days' advance written notice to subscribers and the County
of any change in channel assignment or in the video programming service
provided over any channel, unless this requirement is waived by the
County or by operation of federal or state law, or due to events beyond
the reasonable control of the franchisee.
G.
Leased access channels. A franchisee shall provide leased access
channels as required by federal law.
H.
Interconnection.
(1)
The franchisee shall cooperate in interconnection of the cable systems
in the County by the County so as to permit access programming originating
from any sites on the I-Net to be transmitted simultaneously to all
subscribers of any cable systems in the County. The franchisee shall
ensure that its system design does not impair the County's ability
to provide such access programming to all such subscribers.
(2)
The franchisee shall make available its technical expertise at no
charge to assist in the planning and construction of the interconnection
network.
I.
Customer service monitoring. A franchisee shall keep such records
as are required to enable the County to determine whether the franchisee
is complying with all telephone answering standards required by applicable
customer service regulations, as amended from time to time.
J.
Emergency alert system.
(1)
A franchisee shall install and thereafter maintain for use by the
County an emergency alert system (EAS).
(2)
This EAS shall be remotely activated by telephone and shall allow
a representative of the County to override the audio and video on
all channels on the franchisee's system that may lawfully be
overridden, without the assistance of the franchisee, for emergency
broadcasts from a location designated by the County in the event of
a civil emergency or for reasonable tests.
(3)
The County will provide reasonable notice to the franchisee prior
to any test use of the EAS. The franchisee shall cooperate with the
County in any such test.
K.
Uses of system. A franchisee must advise the County of all active
uses of the system, for both entertainment and other purposes, within
30 days after commercial deployment of such uses, and the County shall
have the right to conduct unannounced audits of such usage.
L.
Additional capacity. A franchisee shall notify the County in advance
of the installation of any fiber optic capacity not contemplated by
the initial design of the system, so that additional fiber may be
installed on an incremental cost basis for government and institutional
use.
M.
Periodic performance evaluation. The County may schedule periodic
review sessions to evaluate the performance of a franchisee or to
discuss the integration of future technologies, other plans or operations
of the franchisee or any aspect of the franchisee's cable system.
The franchisee shall cooperate with the County in any such evaluation.
B.
Application required.
(1)
A written application shall be filed with the County for grant of
an initial franchise.
(2)
To be acceptable for filing, a signed original of the application
shall be submitted together with 12 copies. The application must be
accompanied by any required application filing fee, conform to any
applicable request for proposals, and contain all required information.
All applications shall include the names and addresses of persons
authorized to act on behalf of all applicants with respect to the
application.
(3)
All applications accepted for filing shall be made available by the
County for public inspection.
(4)
To be acceptable for filing, an application submitted after the effective
date of this chapter shall be accompanied by a nonrefundable filing
fee, payable to the County, in the amount of $0.60 multiplied by the
number of households in the proposed franchise area, but no greater
than $25,000 and no less than $1,000, to cover costs incidental to
the awarding of the franchise.
[Amended 9-17-2008 by Bill No. 2008-15]
C.
Application for grant of an initial franchise.
(1)
A person may apply for an initial franchise by submitting an application containing the information required in Subsection D. Upon receipt of such an application, the County may either:
(a)
Evaluate the application pursuant to Subsection C(3), conducting such investigations as it deems necessary; or
(b)
Issue a request for proposals (RFP), after conducting, if necessary,
a proceeding to identify the future cable-related needs and interests
of the community. Any such RFP shall be mailed to the person requesting
its issuance and made available to any other interested party. The
RFP may contain a proposed franchise agreement.
(2)
An applicant shall respond to a RFP by filing an application within the time directed by the County, providing the information and material set forth in Subsection D. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant. Any applicant that has already filed materials pursuant to Subsection C(1)(a) herein need not refile the same materials with its RFP response, but must amplify its application to include any additional or different materials required by the RFP. The County or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(3)
In evaluating an application for a franchise, the County shall consider,
the following factors:
(a)
The extent to which the applicant has substantially complied
with applicable law and the material terms of any existing cable franchise
for the County;
(b)
Whether the quality of any prior service by the applicant in
the County, including signal quality, response to customer complaints,
billing practices, and the like, has been reasonable in light of the
needs and interests of the communities served;
(c)
Whether the applicant has the financial, technical, and legal
qualifications to provide cable service;
(d)
Whether the application satisfies any minimum requirements established
by the County and is otherwise reasonable to meet the future cable-related
needs and interests of the community, taking into account the cost
of meeting such needs and interests;
(e)
Whether, to the extent not considered under Subsection C(3)(d), the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support;
(f)
Whether issuance of a franchise is warranted in the public interest
considering the immediate and future effect on the public rights-of-way
and private property that would be used by the cable system, including
the extent to which installation or maintenance as planned would require
replacement of property or involve disruption of property, public
services, or use of the public rights-of-way; the effect of granting
a franchise on the ability of cable to meet the cable-related needs
and interests of the community; and the comparative superiority or
inferiority of competing applications;
(g)
What effects a grant of the application may have on competition
in the delivery of cable service in the County;
(h)
Any other harm or benefit to the public interest that would
result from granting the application.
(4)
If the County finds that it is in the public interest to issue a
franchise considering the factors set forth above, and subject to
the applicant's entry into an appropriate franchise agreement,
it shall issue a franchise. If the County denies a franchise, it will
issue a written decision explaining why the franchise was denied.
Prior to deciding whether or not to issue a franchise, the County
may hold one or more public hearings or implement other procedures
under which comments from the public on an application may be received.
The County also may grant or deny a request for a franchise based
on its review of an application without further proceedings and may
reject any application that is incomplete or fails to respond to an
RFP. This chapter is not intended and shall not be interpreted to
grant any applicant or existing franchisee standing to challenge the
denial of its application or the issuance of a franchise to another.
D.
Contents of application.
(1)
An RFP for the grant of an initial franchise shall require, and any
such application shall contain, at a minimum, the following information:
(a)
Name and address of the applicant and identification of the
ownership and control of the applicant, including: the names and addresses
of the 10 largest holders of an ownership interest in the applicant
and affiliates of the applicant, and all persons with ownership interest
in the applicant and its affiliates of 5% or more; the persons who
control the applicant and its affiliates; all officers and directors
of the applicant and its affiliates; and any other cable system ownership
interest of each named person.
(b)
A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system.
(c)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system, including,
but not limited to, a demonstration that the applicant meets the following
criteria:
[1]
The applicant must have the necessary authority under Maryland
law to operate a cable system.
[2]
The applicant must have the necessary authority under federal
law to hold the franchise and operate a cable system. An applicant
must have, or show that it is qualified to obtain, any necessary federal
franchises or waivers required to operate the system proposed.
(d)
A demonstration of the applicant's financial ability to
complete the construction and operation of the cable system proposed.
(e)
A description of the applicant's prior experience in cable
system ownership, construction, and operation, and identification
of communities in which the applicant or any of its principals have,
or have had, a cable franchise or any interest therein.
(f)
Identification of the area of the County to be served by the
proposed cable system, including a description of the proposed franchise
area's boundaries.
(g)
A detailed description of the physical facilities proposed,
including channel capacity, performance characteristics, and access
facilities.
(h)
Where applicable, a description of the proposed construction
schedule.
(i)
A demonstration of how the applicant will reasonably meet the
future cable-related needs and interests of the community, including
descriptions of how the applicant will meet the needs described in
any recent community needs assessment conducted by or for the County,
and how the applicant will provide adequate public, educational, and
governmental access channel capacity, facilities, or financial support
to meet the community's needs and interests.
(j)
Pro forma financial projections for the proposed franchise term,
including a statement of projected income, and a schedule of planned
capital additions, with all significant assumptions explained in notes
or supporting schedules.
(k)
If the applicant proposes to provide cable service to an area
already served by an existing cable franchisee, the identification
of the area where the overbuild would occur and the ability of the
public rights-of-way and other property that would be used by the
applicant to accommodate an additional system.
(l)
Any other information that may be reasonably necessary to demonstrate
compliance with the requirements of this chapter.
(m)
Any additional information that the County may request of the
applicant that is relevant to the County's consideration of the
application.
(n)
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments, and certifying
that the application meets all federal and state law requirements.
E.
Application for grant of a renewal franchise. The renewal of any
franchise to provide cable service shall be conducted in a manner
consistent with applicable federal law.
F.
Public hearing. Prior to the issuance of a franchise, the County
shall provide for the holding of a public hearing within the proposed
franchise area, following reasonable notice to the public, at which
the applicant and its application shall be examined and the public
and all interested parties afforded a reasonable opportunity to be
heard.
A.
Construction procedures. A franchisee shall construct, operate and
maintain its cable system in compliance with all applicable law.
(1)
The system shall be subject to inspection by the County for the purpose
of ensuring compliance with the franchise agreement and applicable
law.
(2)
No construction, reconstruction or relocation of the system or any
part thereof within the public rights-of-way shall be commenced until
all applicable written permits have been obtained from the proper
County officials. In any permit so issued, such officials may impose
such conditions and regulations as a condition of the granting of
the permit as are necessary for the purpose of protecting any structures
in the public rights-of-way and for the proper restoration of such
public rights-of-way and structures, and for the protection of the
public and the continuity of pedestrian and vehicular traffic.
(3)
A franchisee shall participate in any "Miss Utility" program active
in its franchise area with regard to giving and receiving notice of
the location of facilities and excavations.
B.
Use of public property.
(1)
Should the grades or lines of the public rights-of-way that a franchisee
is authorized by a franchise to use and occupy be changed at any time
during the term of a franchise, the franchisee shall, if necessary,
relocate or change its system so as to conform with the new grades
or lines.
(2)
Any alteration to the water mains, sewerage or drainage system or
to any County, state or other public structures in the public rights-of-way
required on account of the presence of a franchisee's system
in the public rights-of-way shall be made at the sole cost and expense
of the franchisee. During any work of constructing, operating or maintaining
of a system, the franchisee shall also protect any and all existing
structures belonging to the County and any other person.
C.
Interference with public projects. Nothing in this chapter or any
franchise agreement shall be in preference or hindrance to the right
of the County and any board, authority, commission or public service
corporation to perform or carry on any public works or public improvements
of any description, and should a franchisee's system in any way
interfere with the construction, maintenance or repair of such public
works or public improvements, the franchisee shall protect or relocate
its system, or part thereof, as reasonably directed by any County
official, board, authority, commission or public service corporation.
D.
Construction standards.
(1)
The construction, operation, maintenance, and repair of a system
shall be in accordance with all applicable law and standards. In the
event of a conflict among codes and standards, the most stringent
code or standard shall apply (except insofar as those standards, if
followed, would result in a system that could not meet requirements
of federal, state or local law, or is expressly preempted by other
such standards). The County may adopt additional standards as required
to ensure that work continues to be performed in an orderly and workmanlike
manner.
(2)
All wires, cable lines, and other transmission lines, equipment,
and structures shall be installed and located to cause minimum interference
with the rights and convenience of property owners, to the extent
technically and financially reasonable.
(3)
All installation of electronic equipment shall be of a permanent
nature, using durable components.
(4)
Without limiting the foregoing, all of a franchisee's plant
and equipment, including, but not limited to, the antenna site, head
end and distribution system, towers, house connections, structures,
poles, wires, cable, coaxial cable, fiber optic cable, fixtures, and
apparatuses shall be installed, located, erected, constructed, reconstructed,
replaced, removed, repaired, maintained, and operated in accordance
with good engineering practices, performed by experienced and properly
trained maintenance and construction personnel so as not to endanger
or interfere with improvements the County shall deem appropriate to
make or to interfere in any manner with the legal rights of any property
owner or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic.
(5)
All safety practices required by law shall be used during construction,
maintenance, and repair of a cable system. The franchisee shall at
all times employ ordinary care and shall install and maintain in use
commonly accepted methods and devices preventing failures and accidents
that are likely to cause damage, injury, or nuisance to the public.
(6)
In the event of a failure by a franchisee to complete any work required
for the protection or restoration of the public rights-of-way, or
any other work required by applicable law, within the time specified
by and to the reasonable satisfaction of the County, the County, following
notice and an opportunity to cure, may cause such work to be done,
and the franchisee shall reimburse the County the cost thereof within
30 days after receipt of an itemized list of such costs; or the County
may recover such costs through the security fund provided by a franchisee.
(7)
A franchisee shall not place facilities, equipment, or fixtures where
they will interfere with any gas, electric, telephone, water, sewer,
or other utility facilities, or obstruct or hinder in any manner the
various utilities serving the residents of the County of their use
of any public rights-of-way.
(8)
Any and all public rights-of-way, public property, or private property
that is disturbed or damaged during the construction, repair, replacement,
relocation, operation, maintenance, or reconstruction of a system
shall be promptly repaired by the franchisee.
(9)
A franchisee shall, by a time specified by the County with reasonable
notice, protect, support, temporarily disconnect, relocate, or remove
any of its property when required by the County by reason of traffic
conditions; public safety; public right-of-way construction; public
right-of-way maintenance or repair (including resurfacing or widening);
change of public right-of-way grade; construction, installation or
repair of sewers, drains, water pipes, power lines, signal lines,
tracks, or any other type of government-owned communications system,
public work or improvement or any government-owned utility; public
right-of-way vacation; or for any other purpose where the convenience
of the County would be served thereby; provided, however, that the
franchisee shall, if the County consents, have the privilege of abandoning
any property in place.
(10)
If any removal, relaying, or relocation is required to accommodate
the construction, operation, or repair of the facilities of another
person that is authorized to use the public rights-of-way, a franchisee
shall, after 30 days' advance written notice, take action to
effect the necessary changes requested by the responsible entity.
The County may resolve disputes as to responsibility for costs associated
with the removal, relaying, or relocation of facilities as among entities
authorized to install facilities in the public right-of-way if the
parties are unable to do so themselves, and if the matter is not governed
by a valid contract between the parties or a state or federal law
or regulation.
(11)
In the event of an emergency, or where a cable system creates
or is contributing to an imminent danger to health, safety, or property,
the County may remove, relay, or relocate any or all parts of that
cable system without prior notice.
(12)
A franchisee shall, on the request of any person holding a building
moving permit issued by the County, temporarily raise or lower its
wires to permit the moving of buildings. The expense of such temporary
removal or raising or lowering of wires shall be paid by the person
requesting same, and the franchisee shall have the authority to require
such payment in advance, except in the case where the requesting person
is the County, in which case no such payment shall be required. The
franchisee shall be given not less than 48 hours' advance notice
to arrange for such temporary wire changes.
(13)
A franchisee shall have the authority to trim trees that overhang
a public right-of-way of the County so as to prevent the branches
of such trees from coming in contact with the facilities, wires and
cables of the franchisee. At the option of the County, such trimming
may be done by it or under the supervision and direction of the County.
(14)
A franchisee shall use, with the owner's permission, existing
poles, conduits and other facilities whenever feasible.
(15)
System cable and facilities may be constructed overhead where
poles now exist and electric or telephone lines or both are now overhead,
but, where no overhead poles exist, all cables and facilities, excluding
system passive or active electronics that may be housed in industry-standard
low-profile, aboveground pedestals, shall be constructed underground.
Whenever and wherever electric lines and telephone lines are moved
from overhead to underground placement, all cable system cables shall
be similarly moved, and the cost of movement of its cable shall be
solely the obligation of the franchisee, unless compensation is made
available under such circumstances to the electric or telephone provider,
in which case the cable operator shall not be excluded from such compensation
to the extent it is otherwise made available.
(16)
The County shall have the right to install and maintain free
of charge upon any poles owned by a franchisee any wire and pole fixtures
that do not unreasonably interfere with the cable system operations
of the franchisee. If the County installs such fixtures and the franchisee
later expands its cable system operations in such a way that the County's
fixtures unreasonably interfere with the expanded operations, the
franchisee may require the County to remove such fixtures.
(17)
Prior to erection of any towers, poles, or conduits or the initial
construction, upgrade, or rebuild of a cable system in the public
rights-of-way, the franchisee shall first submit to the County for
approval a concise description of the cable system facilities proposed
to be erected or installed, including engineering drawings, if required
by the County, together with a map and plans indicating the proposed
location of all such facilities, unless another user of the public
rights-of-way has authority to do the work in question and has made
the required submission.
(18)
Any contractor or subcontractor used for work or construction,
installation, operation, maintenance, or repair of system equipment
must be properly licensed under laws of the state and all applicable
local ordinances, where applicable, and each contractor or subcontractor
shall have the same obligations with respect to its work as the franchisee
would have if the work were performed by the franchisee. The franchisee
shall be responsible for ensuring that the work of contractors and
subcontractors is performed consistent with the franchise and applicable
law, shall be fully responsible for all acts or omissions of contractors
or subcontractors, shall be responsible for promptly correcting acts
or omissions by any contractor or subcontractor, and shall implement
a quality control program to ensure that the work is properly performed.
(19)
The County does not guarantee the accuracy of any maps showing
the horizontal or vertical location of existing substructures. In
public rights-of-way, where necessary, the location shall be verified
by excavation.
(20)
To the extent technically and financially reasonable, aboveground
equipment placed on private property shall be placed at the location
requested by the property owner. Whenever aboveground equipment larger
than industry-standard, low-profile equipment is placed on private
property, the franchisee shall provide affected homeowners with at
least 10 days' advance written notice of its plans to install
such equipment; shall make reasonable efforts to confer with such
homeowners before any work is done; and shall either provide landscaping
camouflage acceptable to the property owner, at the franchisee's
expense, or shall provide a cash allowance to the property owner for
such landscaping in the amount of $200 in $2,000, adjusted annually
for inflation based on the Federal Bureau of Labor Statistics Consumer
Price Index (CPI-U) for the Washington-Baltimore, District of Columbia,
Maryland, Virginia, West Virginia area. The franchisee may provide
such allowance either in the form of a credit against subscriber billings,
if the property owner is a subscriber, or in the form of a cash payment.
E.
System tests and inspections.
(1)
Within 60 days after the effective date of an initial franchise agreement,
the franchisee shall submit a test plan describing the methods and
schedules for testing the cable system on an ongoing basis to determine
compliance with the provisions of the franchise agreement.
(2)
A franchisee shall perform cable system tests as required by applicable
law. The tests may be witnessed by representatives of the County,
and the franchisee shall submit written test reports to the Director.
(3)
If more than 10% of the locations tested fail to meet the performance
standards set by the Federal Communications Commission, the Director
shall require that the franchisee indicate what corrective measures
have been taken and the entire test shall be repeated.
(4)
At any time after a franchisee begins service to subscribers, the
County may require the franchisee to perform additional tests, full
or partial repeat tests, different test procedures, or tests involving
a specific subscriber's terminal to determine compliance with
applicable standards. Additional tests may only be required on the
basis of complaints received or other information indicating an unresolved
controversy or significant noncompliance issue, and the additional
tests shall be limited to the particular controversy or issue.
(5)
The County shall attempt to arrange requests for additional tests
so as to minimize hardship or inconvenience to the franchisee or to
the subscriber.
(7)
Nothing in this chapter may be construed to prevent the County from
conducting technical reviews of cable systems at the County's
expense.
F.
Restoration. A franchisee promptly shall restore to a condition equal
to or better than the original condition any excavation or other disturbance
of property. Such restoration shall be undertaken within no more than
30 days after the damage is incurred, and shall be completed as soon
as reasonably possible thereafter. The franchisee shall guarantee
such restoration for at least one year against defective materials
or workmanship.
G.
Publicizing proposed construction work. A franchisee shall notify
the public prior to commencing any proposed construction that will
significantly disturb or disrupt public property or have the potential
to present a danger or affect the safety of the public generally.
The franchisee shall publicize proposed construction work at least
one day prior to commencement of that work by causing written notice
of such construction work to be delivered to the County and by notifying
those persons most likely to be affected by the work in at least two
of the following ways: by telephone, in person, by mail, by distribution
of flyers to residences, by publication in local newspapers, or in
any other manner reasonably calculated to provide adequate notice.
H.
System maintenance.
(1)
Interruptions to be minimized. A franchisee shall schedule maintenance
on its system so that activities likely to result in an interruption
of service are performed during periods of minimum subscriber use
of the system.
(2)
Maintenance practices subject to regulation. Maintenance of the system
shall be performed in accordance with the technical performance and
operating standards established by FCC rules and regulations. The
County may monitor the franchisee's maintenance practices and,
to the extent permitted by applicable law, may waive requirements
or adopt additional requirements as reasonable to ensure the system
remains capable of providing high-quality service.
A.
B.
Editorial control. Except as expressly permitted by federal law,
a franchisee shall not exercise any editorial control over the content
of programming on designated public, educational and governmental
access channels (except for such programming as the franchisee may
produce and cablecast on such channels).
[Amended 9-17-2008 by Bill No. 2008-15]
The provisions of this § 226-9 shall apply except to the extent otherwise expressly provided in a franchise agreement.
A.
General provisions. This § 226-9 sets forth customer service standards that a franchisee must satisfy. In addition, the franchisee shall at all times satisfy any additional or stricter requirements established by FCC regulations, or other applicable federal, state, or local law or regulation, as the same may be amended from time to time.
(1)
Nothing in this chapter may be construed to prevent or prohibit the
establishment or enforcement of any County law or regulation concerning
customer service that imposes customer service requirements that exceed,
or address matters not addressed by, the standards set forth in this
chapter, a franchise agreement or federal or state law.
(2)
Nothing in this chapter in any way relieves a franchisee of its obligation
to comply with other applicable consumer protection laws and its franchise
agreement.
B.
Installations, connections, and other franchisee services.
(1)
Standard installations. Except as federal rate regulations may otherwise
require, the franchisee shall not assess a subscriber any cost other
than a standard installation charge for service drops of 225 feet
or less for a single outlet unless the franchisee demonstrates to
the County's satisfaction that extraordinary circumstances justify
a higher charge.
(2)
Nonstandard installations. Except as applicable law may otherwise
require, where, pursuant to good engineering practices, a drop requires
a drop length of over 225 feet, a franchisee may charge a subscriber
for the franchisee's actual costs associated with installing
the drop beyond 225 feet. The subscriber's preference as to the
point of entry into the residence shall be observed whenever technically
and financially reasonable. The franchisee shall use due care in the
process of installation and shall repair any damage to the subscriber's
property caused by said installation. Such restoration shall be undertaken
as soon as possible after the damage is incurred and shall be completed
within no more than 30 days after the damage is incurred, subject
to reasonable landscaping limitations.
(3)
Location of drops. In locations where the franchisee's system
is underground, drops must be placed underground as well. Except as
federal law may otherwise require, in any area where a franchisee
would be entitled to install a drop aboveground, the franchisee, if
requested by the homeowner, shall install the drop underground, but
may charge the homeowner the difference between the cost of the aboveground
installation and the cost of the underground installation.
(4)
Deposits. A franchisee may require a reasonable, nondiscriminatory
deposit on equipment provided to subscribers, in addition to any allowable
monthly rental fees. Any subscriber deposit required by the franchisee
shall bear interest in accordance with applicable law or at the going
rate, which shall be not less than the prime rate of the bank being
used by the County for the conduct of ordinary business. All deposits,
with interest, shall be returned to the subscriber within 30 days
after return of the equipment.
(5)
Antennas and antenna switches. A franchisee shall adhere to FCC regulations
regarding antenna switches. A franchisee may not require, as a condition
to providing cable service, a subscriber or potential subscriber to
remove any existing antenna structures for the receipt of over-the-air
television signals.
(6)
Delinquent accounts. A franchisee shall use its best efforts to collect
on delinquent subscriber accounts before terminating service. In all
cases, the franchisee shall provide the customer with at least 10
working days' written notice prior to disconnection.
C.
Telephone and office availability.
(1)
Each franchisee shall maintain an office at a convenient location
in the County that shall be open during normal business hours to allow
subscribers to request service, pay bills, and conduct other business.
(2)
Each franchisee will maintain at least one local, toll-free or collect-call
telephone access line which will be available to subscribers 24 hours
a day, seven days a week. Trained representatives of a franchisee
shall be available to respond to subscriber telephone inquiries during
normal business hours.
(3)
Under normal operating conditions, the following standards shall
be met by a franchisee at least 90% of the time, measured quarterly:
(a)
Telephone answering time shall not exceed 30 seconds, and the
time to transfer the call to a customer service representative (including
hold time) shall not exceed an additional 30 seconds.
(b)
A customer will receive a busy signal less than 3% of the time.
(c)
When the business office is closed, an answering machine or
service capable of receiving and recording service complaints and
inquiries shall be employed. Inquiries received after hours must be
responded to by a trained representative of a franchisee on the next
business day. To the extent possible, the after-hours answering service
shall comply with the same telephone answer time standard set forth
in this section.
D.
Scheduling and completing service.
(1)
Under normal operating conditions, each of the following standards
shall be met by all franchisees at least 95% of the time, as measured
on a quarterly basis:
(a)
An installation located up to 225 feet from a franchisee's
existing distribution system shall be completed within seven business
days after the order is placed, excluding time required to obtain
necessary permits, unless the customer requests a later date;
(b)
An installation not located within 225 feet from a franchisee's
existing distribution system shall be completed within 60 days if
the distribution system need not be extended for 1/2 mile or more
to provide service or within one year if an extension of the distribution
system for 1/2 mile or more is required, excluding time required to
obtain necessary permits;
(c)
Work on other requests for service shall be commenced by the
next business day after notification of the problem, and the work
shall be completed within three days from the date of the initial
request. If for reasons beyond the franchisee's control the work
cannot be completed in the required time even with the exercise of
all due diligence, the franchisee shall complete the work in the shortest
time possible. A franchisee's failure to hire sufficient staff
or to properly train its staff does not justify a franchisee's
failure to comply with the required time period. Except as federal
law otherwise provides, a charge may not be made to the subscriber
for service work, except for the cost of repairs to the franchisee's
equipment or facilities if it can be documented that the subscriber
damaged the equipment or facility; and
(d)
At a minimum, a franchisee shall perform installations and disconnects
during normal business hours.
(2)
Appointments. A franchisee shall offer an appointment window for installations, service calls, and other installation activities within the time frame specified in Subsection D(1) that will be either a specific time or, at maximum, a four-hour time block during normal business hours. A franchisee may also offer, in addition to these four-hour windows, larger appointment windows (for example, an entire day).
(3)
Cancellations. A franchisee may not cancel an appointment with a
subscriber after the close of business on the business day preceding
the appointment. If a franchisee's representative is running
late for an appointment with a subscriber and is not able to keep
the appointment as scheduled, the subscriber will be contacted, and
the appointment rescheduled as necessary, at a time which is convenient
for the subscriber.
(4)
Other inquiries. Under normal operating conditions, billing inquiries
and requests for service, repair, and maintenance not involving service
interruptions must be acknowledged by a trained customer service representative
prior to the end of the next business day. A franchisee shall respond
to all other inquiries within five business days of the inquiry or
complaint.
(5)
Except where federal law gives the franchisee a right to impose a
charge, no charge shall be made to the subscriber for repairs or maintenance
of franchisee-owned equipment or facilities, except for the cost of
repairs to the franchisee's equipment or facilities where it
can be shown that the equipment or facility was damaged by a subscriber.
(6)
A franchisee shall have a policy to compensate a subscriber who experiences
a missed appointment due to the fault of the franchisee.
(7)
Mobility-limited subscribers. With regard to mobility-limited subscribers,
upon subscriber request, each franchisee shall arrange for pickup
and/or replacement of converters or other franchisee equipment at
the subscriber's address or by a satisfactory equivalent (such
as the provision of a postage-prepaid mailer).
E.
Interruptions of service. A franchisee may intentionally interrupt
service on the cable system only for good cause and for the shortest
time possible and, except in emergency situations or to the extent
necessary to fix the affected subscriber's service problems,
only after a minimum of 48 hours' prior notice to subscribers
and the County of the anticipated service interruption. The franchisee
shall maintain a written log or the equivalent stored in computer
memory and capable of access and reproduction on hard copy for all
service interruptions and requests for cable service. A franchisee
need not give notice to subscribers for planned maintenance that does
not require more than two hours' interruption of service and
that occurs between the hours of 12:00 midnight and 6:00 a.m.
F.
Notice to subscribers.
(1)
When a subscriber is connected or reconnected to a cable system and
at least once annually afterwards, the franchisee shall provide each
subscriber with written information concerning:
(a)
The procedures for making inquiries or complaints, including
the name, address, local telephone number, and e-mail address of the
employee or agent to whom inquiries or complaints are to be addressed;
(b)
The County official responsible for regulating the franchise,
including the name, telephone number, and e-mail address of the official;
and
(c)
The franchisee's business hours, legal holidays, and procedures
for responding to inquiries after normal business hours.
(2)
The franchisee shall provide to all subscribers at least 30 days'
written notice before the implementation of any change in rates, programming
services, business hours, legal holidays, or procedures for responding
to inquiries after normal business hours. At least five working days
before the subscriber notice, unless waived by the County, the franchisee
shall provide to the County the specific points to be contained in
a subscriber notice and the text of the subscriber notice, if available.
If the text is not available, it shall be provided to the County as
soon as it is available.
(3)
The franchisee shall provide the County with copies of all notices
provided to subscribers at the same time the notices are first sent
to subscribers.
(4)
All franchisee promotional materials, announcements, and advertising
of residential cable service to subscribers and the general public,
where price information is listed in any manner, shall clearly and
accurately disclose price terms. In the case of pay-per-view or pay-per-event
programming, all promotional materials must clearly and accurately
disclose price terms and in the case of telephone orders, a franchisee
shall take appropriate steps to ensure that price terms are clearly
and accurately disclosed to potential customers before the order is
accepted.
G.
Billing.
(1)
Bills shall be clear, concise, and understandable. Bills shall fully
itemize services, equipment, and any other items for which a franchisee
charges a subscriber, including basic and premium service charges
and equipment charges. Bills shall clearly delineate all activity
during the billing period, including optional charges, rebates, and
credits.
(3)
Credits for service shall be issued no later than the subscriber's
next billing cycle following the determination that a credit is warranted.
(4)
A franchisee's first billing statement after a new installation
or service change shall be prorated as appropriate and shall reflect
any security deposit.
(5)
A franchisee's billing statement must show a specific payment
due date not earlier than the midpoint of the period for which the
service being billed is rendered (e.g., the 15th day of a thirty-day
billing cycle). If a balance due is not received by seven days after
the end of the period for which the service being billed is rendered,
the franchisee may assess a late fee in accordance with state and
local law and judicial decisions. Any late fee shall appear on the
following month's billing statement.
(6)
A franchisee must notify the subscriber that he or she can remit
payment in person at the franchisee's business office and inform
the subscriber of the address of that office.
(7)
Subscribers shall not be charged a late fee or otherwise penalized
for any failure by a franchisee, including failure to timely or correctly
bill the subscriber, or failure to properly credit the subscriber
for a payment timely made.
(8)
The account of any subscriber shall be credited a prorated share
of the monthly charge for service, upon the subscriber's reasonably
prompt request or without a subscriber's request if the franchisee
can reasonably identify the affected subscribers, whenever:
(10)
A franchisee shall respond to all written billing complaints
from subscribers within 30 days of receipt.
H.
Disconnection/downgrades.
(1)
A subscriber may terminate service at any time.
(2)
A franchisee shall promptly disconnect or downgrade any subscriber
and may not require a period of notice before the disconnect or downgrade.
If the subscriber returns, or permits the franchisee to retrieve,
any equipment necessary to receive a service within five business
days of the disconnection, the franchisee may not impose a charge
for any cable service delivered after the date of the disconnect request.
(3)
A subscriber may be asked, but not required, to disconnect a franchisee's
equipment and return it to the business office. If a franchisee fails
to make reasonable efforts to remove its property from a subscriber's
premises within 45 days of the termination of service, the property
shall be deemed abandoned unless the subscriber is responsible for
the franchisee's failure to remove the property.
(4)
Any security deposit and/or other funds due the subscriber shall be refunded on disconnected accounts after any customer premises equipment provided by the franchisee has been recovered by the franchisee. The refund must be made pursuant to the schedule for issuance of refund checks in Subsection G(2).
(5)
If a subscriber fails to pay a monthly subscriber fee or other fee
or charge, a franchisee may disconnect the subscriber's service.
However, the disconnection may not occur until after 45 days from
the beginning of the period for which the service being billed is
rendered, plus at least 10 days' advance written notice to the
subscriber of the intent to disconnect, given after the 45 days have
elapsed. If the subscriber pays all amounts due, including any late
charges, before the date scheduled for disconnection, the franchisee
may not disconnect service. After disconnection, upon payment by the
subscriber in full of all proper fees or charges, including the payment
of any reconnection charge, the franchisee shall promptly reinstate
service.
(6)
A franchisee may immediately disconnect a subscriber if the subscriber
is damaging or destroying the franchisee's cable system or equipment.
After disconnection, the franchisee shall restore service after the
subscriber provides adequate assurance that it has ceased the practices
that led to disconnection, and paid all proper fees and charges, including
any reconnect fees and amounts owed the franchisee for damage to its
cable system or equipment.
(7)
A franchisee may disconnect a subscriber who causes signal leakage
in excess of federal limits. Disconnection may be effected either:
(a)
After five days' written notice to the subscriber, if the
subscriber fails to take steps to correct the problem; or
(b)
Without notice if signal leakage is detected originating from
the subscriber's premises in excess of federal limits, provided
that the franchisee shall immediately notify the subscriber of the
problem and, once the problem is corrected, reconnect the subscriber.
(8)
A franchisee shall reconnect service to a subscriber who wishes to
have the subscriber's service restored if the subscriber first
satisfies any previously owed obligations.
I.
Changes in service.
(1)
When a franchisee substantially alters the service it provides to a class of subscribers, the franchisee shall provide each subscriber notice as required in Subsection F, explain the substance and full effect of the alteration, and provide the subscriber with the right to choose to receive any combination of services offered by the franchisee.
(2)
A franchisee may not charge for any service or product that the subscriber
has not affirmatively indicated the subscriber wishes to receive.
Payment of the regular monthly bill does not in and of itself constitute
such an affirmative indication.
J.
Parental control option. Upon the request of a subscriber, a franchisee
shall make available to each subscriber, for rent or purchase, the
option of blocking the video and audio portion of any channel or channels
of programming entering the subscriber's home. The control option
shall be made available to all subscribers requesting it at the time
that cable service is provided or within a reasonable time thereafter.
K.
Enforcement. A franchisee shall keep such records as are necessary
to show compliance with these customer service standards and FCC customer
service standards.
L.
Exclusive contracts and anticompetitive acts prohibited.
(1)
No franchisee shall demand the exclusive right to serve a person
or location as a condition of extending service. This provision shall
not prohibit voluntary exclusive agreements to provide cable service.
(2)
A franchisee may not engage in unlawful acts that have the purpose
or effect of limiting competition for the provision of cable service
or services similar to cable service in the County.
The County reserves the right to regulate all rates and charges
except to the extent it is prohibited from doing so by law.
[Amended 9-17-2008 by Bill No. 2008-15]
The provisions of this § 226-11 shall apply except to the extent otherwise expressly provided in a franchise agreement.
A.
Open books and records.
(1)
A franchisee shall manage all of its operations in accordance with
a policy of open books and records.
(2)
On reasonable notice, the County may inspect at any time during normal business hours all books, records, maps, plans, service complaint logs, performance test results, and other like materials of the franchisee that are reasonably necessary to the performance of any of the County's responsibilities under this chapter or a franchisee agreement and that are maintained at the local business office required by § 226-9C(1).
(3)
If any books or records that relate to the cable system are not kept
in any local office or on reasonable request are not made available
to the County at a location of its choosing, and if the County determines
that an examination of the records is reasonably necessary to the
performance of any of the County's responsibilities under this
chapter or a franchise agreement, the franchisee shall pay all reasonable
and necessary expenses incurred in making the examination.
(4)
The County shall maintain the confidentiality of any trade secrets
or other proprietary information in the possession of the franchisee,
and the records shall be exempt from inspection under this section
to the extent required by applicable law regarding subscriber privacy.
(5)
A franchisee shall have the capability to provide financial information
specific to the County to the extent such information may be reasonably
necessary to the performance of any of the County's responsibilities
under this chapter or a franchise agreement.
B.
Copies of state and federal reports.
(1)
A franchisee shall submit to the County copies of all nonroutine
pleadings, applications, notifications, and documents of any kind
that could impact its cable operations within the franchise area that
are submitted by the franchisee to any federal or state court or to
any federal, state or local regulatory agency or governmental body,
together with copies of all decisions, correspondence, and documents
evidencing actions by those courts, regulatory agencies, or governmental
bodies.
(2)
A franchisee may not claim confidential, privileged, or proprietary rights to documents required to be provided by Subsection B(1) unless those documents are established by law or by the practices of federal or state agencies as confidential, privileged, or proprietary. The County shall maintain any data exempt from public disclosure in confidence and may not make the data available for public inspection.
C.
Annual report. Unless this requirement is waived in whole or in part
by the County, no later than 120 days after the end of its fiscal
year, a franchisee shall submit a written report to the County, in
a form acceptable to the County, which shall include:
(1)
A summary of the previous year's activities in development of
the cable system, including services begun or discontinued during
the reporting year and the number of subscribers for each class and
service tier;
(2)
A statement of any projected construction for the next two years;
(3)
A detailed copy of updated maps depicting the location of all cable
plants in the County;
D.
Annual financial statement. On an annual basis within 60 days after
the close of a franchisee's fiscal year, the franchisee shall
furnish to the County a financial statement prepared in accordance
with generally accepted accounting principles that reflects the total
amounts of gross receipts or gross revenues, as applicable, and all
payments, deductions, and computations for the period covered by the
statement. The statement shall be:
E.
Quarterly report. A franchisee shall complete for each calendar quarter
and submit to the Director by the 10th day of the month succeeding
the calendar quarter a report containing the following information:
(1)
A summary of service requests identifying the number and nature of
the requests and their disposition;
(2)
A summary showing the number and nature of service calls during the
quarter;
(3)
The total number of subscribers at the end of the quarter;
(4)
Results of any proof of performance tests conducted on the cable
system during the quarter; and
(5)
The status on any rebuild or major new construction in progress during
the quarter.
F.
Telephone statistics report.
(1)
A franchisee shall maintain and organize statistics on a monthly
basis for all telephone calls received in each month, whether the
calls are received directly by the franchisee or by an answering service.
The statistics shall address telephone answer time, including wait
time; telephone transfer time; percentage of customers receiving a
busy signal; and number of cases where trained customer service representatives
did not respond by the next business day to telephone inquiries received
after normal business hours. The statistics shall be in a form sufficient
to enable the County to determine whether the standards specified
in this chapter are being met.
(2)
Unless the franchise agreement or applicable law requires that the
telephone statistics be provided more often, a franchisee shall submit
the statistics in a report to the County by the 10th day of the month
succeeding each calendar quarter. The report shall show the statistics
for the three-month period, plus quarterly totals.
G.
Complaint file.
(1)
A franchisee shall keep an accurate record of complaints regarding
the cable system and the franchisee's actions in response to
those complaints. These records shall be open to the public during
normal business hours.
(2)
A franchisee shall maintain a log and summary of all service interruptions.
The log and summary shall be available for inspection by the County
and the public during normal business hours.
H.
Inspection of facilities.
(1)
The County may inspect all construction or installation work performed
under the provisions of the franchise agreement and conduct any tests
that the County finds necessary to ensure compliance with the terms
of this chapter and the franchise agreement and other pertinent provisions
of law.
(2)
A franchisee shall allow the County to make inspections of the franchisee's
facilities and equipment at any time on at least 10 days' notice
or, in case of emergency, on demand without prior notice, to allow
the County to verify the accuracy of any submitted report.
I.
Records required.
(1)
A franchisee shall maintain at all times within its local office
the following records:
(2)
The franchisee shall file copies of the following items with the
County and post them conspicuously for public inspection in the franchisee's
local office:
J.
Voluminous materials. If any books, records, maps or plans, or other
requested documents are too voluminous, or for security reasons cannot
be copied and moved, then a franchisee may request that the inspection
take place at some other location, provided that:
K.
Retention of records; relation to privacy rights. A franchisee shall
take all steps that may be required to ensure that it is able to provide
the County all information which must be provided or may be requested
under this chapter or its franchise agreement, including by providing
appropriate subscriber privacy notices. Nothing in this section shall
be read to require the franchisee to violate 47 U.S.C. § 551.
Each franchisee shall be responsible for redacting any data that federal
law prevents it from providing to the County. The County retains the
right to question any such redaction and to challenge it in any forum
having jurisdiction over such a challenge. Records shall be kept for
at least three years, with the exception of records pertaining to
franchise fees, which shall be kept for at least five years.
A.
Insurance.
(1)
Throughout the term of a franchise, a franchisee shall maintain:
(a)
Worker's compensation insurance in the amount and manner
required by the State Workers' Compensation Law;
(b)
Commercial general liability insurance, including coverage for
bodily injury and property damage, in the amount of $1,000,000 for
property damage resulting from any one accident; $2,000,000 for property
damage aggregate; $1,000,000 for personal bodily injury or death for
one person; $2,000,000 for bodily aggregate per single accident and
occurrence; $2,000,000 for all other types of liability; and
(c)
Comprehensive automobile liability insurance, including owned,
nonowned, and hired car coverage with coverage for bodily injury and
property damage, $2,000,000 for bodily injury and consequent death
per occurrence, $1,000,000 for bodily injury and consequent death
to any one person, and $500,000 for property damage per occurrence.
(2)
Except to the extent otherwise expressly provided in a franchise
agreement, a franchisee shall furnish the County with certificates
of the insurance policies required under this section. A franchisee
shall make the actual policies available to the County upon request.
Insurance policies shall be in a form satisfactory to the County Attorney
and shall require 30 days' written notice of cancellation to
the franchisee and to the County. If there is a cancellation notice,
the franchisee shall obtain, pay the premiums for, and file with the
County written evidence of payment of premiums and copies of replacement
policies within 30 days after receipt by the County or the franchisee
of a notice of cancellation.
(4)
The minimum amounts set forth in the franchise agreement for insurance
do not limit the liability of the franchisee to the amounts of that
insurance.
(5)
All insurance carriers providing the coverage described in this section
shall be duly licensed to offer insurance in this state.
B.
Indemnification.
(1)
At its sole cost and expense, a franchisee shall indemnify, defend,
and hold harmless the County, its officials, boards, commissions,
Commissioners, agents, and employees, against all liability, loss,
claims, suits, judgments, costs, attorney fees, and damages of any
kind in any way arising out of or through, or alleged to arise out
of or through:
(b)
The acts or omissions of the franchisee and its employees, officers,
or agents, arising out of the construction, installation, maintenance,
operation, or removal of the cable system, including damage to persons,
real property, or personal property caused by the construction, installation,
operation, maintenance, or removal of any structure, equipment, wire,
or cable;
(c)
The acts or omissions of the franchisee, and its employees,
officers, or agents, including any failure or refusal by the franchisee,
and its employees, officers, or agents, to comply with any obligation
or duty imposed on the franchisee by this chapter or the franchise
agreement;
(d)
Copyright infringements;
(e)
Any failure by the franchisee to secure consents from the owners,
authorized distributors, or licensees of programs to be delivered
by the cable system, whether or not any act or omission complained
of is authorized, allowed, or prohibited by this chapter or the franchise
agreement; and
(f)
The exercise by the franchisee of any of the rights conferred
on it by this chapter or the franchise agreement.
(2)
If a claim arises, the County shall tender the defense of the claim
to the franchisee. The County may participate in the defense of a
claim at its expense. If the County elects to participate in the defense
of the claim, the franchisee shall retain the right to settle the
claim unilaterally on its own terms and conditions unless the County
accepts full responsibility for all damages and costs associated with
the claim.
(3)
A franchisee is not required to indemnify the County for the negligence
or willful misconduct of the County.
(4)
A franchisee is not required to indemnify the County for any activity
from which the franchisee is immune from liability pursuant to 47
U.S.C. § 558, pertaining to programming for PEG access facilities
and leased channels.
(5)
The fact that the franchisee carries out activities under the franchise
through independent contractors does not constitute an avoidance of
or defense to its duty of indemnification under this section.
A.
Performance bond.
(1)
Within 30 days after the granting of a new franchise or a renewal
that requires significant system construction as specified in the
franchise agreement, and before the commencement of construction by
the franchisee, the franchisee shall file with the County a performance
bond in the amount specified in the franchise agreement in favor of
the County and any other person who may be entitled to damages as
a result of any occurrence in the construction, operation or termination
of the cable system operated under the franchise agreement.
(2)
Among other matters, the bond shall cover:
(3)
The amount of the bond is not a limitation on the liability of the
franchisee for damages.
(4)
The County may accept a cash deposit or an irrevocable letter of
credit in lieu of a bond required under this chapter.
(6)
Reduction of bond. Upon written application by a franchisee, the
County may, at its sole option, in writing, permit the amount of the
bond to be reduced or waive the requirements for a performance bond.
Reductions granted or denied upon application by the franchisee shall
be without prejudice to the franchisee's subsequent applications
or to the County's right to require the full bond at any time
thereafter. However, no application shall be made by the franchisee
within one year of any prior application.
B.
Additional security fund.
(1)
Within 30 days after the effective date of the franchise, the franchisee
shall deposit into a bank account established by the County, and maintain
on deposit throughout the term of the franchise, the sum specified
in the franchise agreement as security for the franchisee's:
(a)
Faithful performance of all of the provisions of the franchise
and compliance with all orders, permits, and directions of any agency
of the County having jurisdiction over its acts or defaults under
this chapter or any other provision of this Code; and
(b)
Payment of any claims, liens, and taxes due to the County that
arise by reason of the construction, operation, or maintenance of
the cable system.
(2)
The County may permit a franchisee to provide some or all of the
security fund in the form of an irrevocable letter of credit in lieu
of a cash deposit.
(3)
Subject to the provisions of Subsection B(4), the security fund may be assessed by the County for:
(a)
Failure of the franchisee to pay the County sums due under the
provisions of the franchise agreement and this chapter;
(b)
Reimbursement of costs borne by the County to correct franchise violations not corrected by the franchisee after notice and the opportunity to cure as provided under Subsection C of this section; and
(c)
Monetary remedies, penalties, or damages assessed against the
franchisee due to franchise violations.
(4)
The County may withdraw the amount due, with interest and any penalties,
from the security fund if after 30 days' written notice the franchisee
fails to:
(a)
Pay to the County any franchise fee or taxes due;
(b)
Pay to the County any damages, costs, or expenses that the County
is compelled to pay by reason of any act or default of the franchisee
in connection with the franchise; or
(c)
Comply with any material provision of the franchise that the
County determines can be remedied by an expenditure of the security
fund.
(5)
On any withdrawal from the security fund, the County shall notify
the franchisee of the amount and date of withdrawal.
(6)
Within 30 days after notice to the franchisee that any amount has
been withdrawn by the County from the security fund under this section,
the franchisee shall deposit a sum of money sufficient to restore
the security fund to the amount required by the franchise agreement.
(7)
If the franchise is revoked for cause by reason of the default of the franchisee under Subsection E of this section, the security fund deposited under this section shall become the property of the County.
(8)
If there is no outstanding default by the franchisee at the end of
90 days after the expiration of the term of the franchise, the franchisee
is entitled to the return of all or any part of the security fund
that remains on deposit and to any accrued interest.
(9)
The rights reserved to the County with respect to the security fund
are in addition to all other rights of the County, whether reserved
by this chapter or authorized by law. Any action, proceeding, or exercise
of a right with respect to the security fund does not constitute an
election of remedies or a waiver of any other right the County may
have.
C.
Procedure for remedying franchise violations.
(1)
If the County determines that a franchisee has failed to perform
any obligation under the franchise or has failed to perform in a timely
manner, the County may make a written demand on the franchisee that
it remedy the violation. If the violation is not remedied or in the
process of being remedied to the satisfaction of the County within
a reasonable time period following the demand, the County may:
(2)
Remedies available to the County for franchise violations under this
chapter and under a franchise agreement shall be construed, except
as otherwise provided in this chapter, as cumulative and not alternative.
D.
Monetary remedies.
(1)
For a franchisee's violation of this chapter or its franchise
agreement, the County may assess against the franchisee liquidated
damages up to the limits established in the franchise agreement and
assess and withdraw the liquidated damages from the franchisee's
security fund.
(2)
Alternatively, subject to any limitations specified in a franchise
agreement, for a franchisee's violation of this chapter or its
franchise agreement, the County may assess against the franchisee
civil penalties up to the limits specified below and assess and withdraw
the civil penalties from the franchisee's security fund.
[Amended 9-17-2008 by Bill No. 2008-15]
Violation
|
Civil Penalty
| |
---|---|---|
I-Net construction delays
|
$200 per day
| |
Failure to obtain permits required for construction
|
$50 per occurrence, in addition to any normal cost of permits.
If a standard for the failure generally applicable to users of the
rights-of-way is specified elsewhere in the Code, the general standard
applies in place of the amount set forth here.
| |
Obtaining permits or constructing facilities on behalf of another
entity
|
$1,000 per occurrence, in addition to any normal cost of permits.
If a standard for the failure generally applicable to users of the
rights-of-way is specified elsewhere in the Code, the general standard
shall apply in place of the amount set forth here.
| |
Violation of construction standards (such as standards regarding
burial of cable)
|
$200 per day
| |
Violation of consumer service standards
|
$100 per day or per occurrence, as applicable
| |
Failure to comply with PEG access requirements
|
$125 per day, in addition to any monetary payment due
| |
Failure to meet I-Net technical performance standards
|
$500 per day
| |
Failure to meet requirements for response to I-Net outages
|
$250 per occurrence
| |
Failure to supply information, reports, or filings lawfully
required
|
$200 per day
| |
Failure to render payments due to the County, such as franchise
fees or liquidated damages
|
$100 per day, in addition to any monetary payment due
| |
Failure to file, obtain, or maintain a bond or letter of credit
in a timely fashion
|
$50 per day
| |
Failure to restore damaged property
|
$50 per day, in addition to the cost of the restoration
| |
Violation of technical standards of the FCC
|
$100 per day
| |
Any other violations of this chapter, a franchise agreement,
or other applicable law
|
$200 per day for each violation for each day the violation continues
|
(3)
For customer service standards that are measured on a quarterly basis,
penalties shall be assessed using the procedure specified in a franchisee's
franchise agreement for such quarterly standards.
(4)
The franchisee shall pay any penalty assessed in accordance with
this chapter within 30 days after receipt of notice from the County.
(5)
If civil penalties are assessed against a franchisee under this section,
the franchisee is not subject to liquidated damages payable to the
County for the same violation, and vice versa. If the County seeks
actual damages for any violation, any penalties or liquidated damages
recovered by the County for the same violation, including penalties
or liquidated damages for partial time periods included in a longer
time period for which actual damages are sought, shall be offset against
any actual damages recovered by the County.
(6)
The County may reduce or waive any of the above-listed penalties
for good cause shown.
(7)
The filing of an appeal to any regulatory body or court does not
stay or release the obligations of a franchise under the franchise
agreement and applicable law. This provision reflects in part the
obligations of a franchisee under applicable law and may not be construed
to waive any right or obligation of the County or a franchisee.
(8)
An assessment of liquidated damages or civil penalties does not constitute a waiver by the County of any other right or remedy it may have under the franchise or applicable law, including its right to recover from the franchisee any additional damages, losses, costs, and expenses, including actual attorney fees, that were incurred by the County by reason of or arising out of the violation. However, the County's election of liquidated damages under the franchise agreement shall take the place of any right to obtain actual damages over and above the payment of any amounts otherwise due. This provision may not be construed to prevent the County from electing to seek actual damages for a continuing violation if it has imposed civil penalties or liquidated damages for an earlier partial time period for the same violation, subject to the offset specified in Subsection D(5) of this section.
E.
Revocation.
(1)
The County may revoke a franchise and rescind all rights and privileges
associated with it in the following circumstances, each of which represents
a default and a material breach of the franchise:
(a)
The franchisee fails to perform any of its material obligations
under this chapter or under any documents, agreements, or other terms
and provisions entered into between the County and the franchisee;
(b)
Either:
[1]
There is a repeated and verifiable pattern of noncompliance
with FCC technical performance standards; or
[2]
The system is unable to meet FCC technical standards at any
given test location, due to an inherent system problem, after an initial
test and two repeat tests, including a reasonable opportunity to correct
the system problem;
(c)
There is a repeated and verifiable pattern of significant noncompliance with the consumer standards set forth in § 226-9;
(d)
The franchisee fails to provide continuous and uninterrupted
cable service; or
(e)
The franchisee engages in any fraud or deceit upon the County.
(2)
To revoke a franchise: After taking the steps specified in Subsection C, the County Administrator or designee shall hold an informal meeting with the franchisee to review the alleged violation. If the meeting does not result in a satisfactory resolution, the franchisee or County Administrator or designee may request a hearing before the Board of County Commissioners on the violation.
[Amended 12-15-2015 by Bill No. 2015-07]
(3)
Upon receipt of a request for a hearing under § 226-13E(2) of this chapter, the Board of County Commissioners shall issue written notice of its intent to hold a hearing and consider revocation. The notice shall contain the time and place of the hearing, be published at least once 10 days before the hearing in a newspaper of general circulation within the franchise area, and be served on the franchisee at least 30 days before the hearing. Notice to the franchisee shall contain the allegations of the franchise violations.
[Amended 12-15-2015 by Bill No. 2015-07]
(4)
The Board of County Commissioners shall hear any persons interested in the revocation and shall determine, based on a preponderance of the evidence, whether the franchisee committed a material breach of this chapter or the franchise agreement, or that the violation by the franchisee was excusable under § 226-18B of this chapter..
[Amended 12-15-2015 by Bill No. 2015-07]
(5)
If the Board of County Commissioners determines that the franchisee
has committed a material breach, the Board of County Commissioners
may:
(a)
By ordinance declare that the franchise is revoked and the security
fund and bonds forfeited; or
(b)
By resolution direct the franchisee to take appropriate remedial
action for a breach that is capable of being cured within the time
and in the manner and on the terms and conditions that the Board of
County Commissioners determines are reasonable under the circumstances.
(6)
If the Board of County Commissioners determines that the violation by the franchisee was excusable under § 226-18B of this chapter, it shall by resolution direct the franchisee to correct or remedy the violation within the additional time and in the manner and on the terms and conditions that the Board of County Commissioners determines are reasonable under the circumstances.
[Added 12-15-2015 by
Bill No. 2015-07]
F.
Procedures in event of termination. Subsection F(1) through (4) shall apply except to the extent otherwise expressly provided in a franchise agreement.
[Amended 9-17-2008 by Bill No. 2008-15]
(1)
If a franchise is revoked, expires, or is otherwise terminated, the
County may order the franchisee to:
(a)
Remove aboveground system facilities from the franchise area
within a reasonable period of time as determined by the County; or
(b)
Maintain and operate its cable system as in its normal course
of business for a period not to exceed 24 months from the date of
termination and provide cable services of the types provided before
termination, in accordance with the provisions of this chapter and
the terms of the franchise agreement.
(2)
In removing its plant, structures, and equipment, the franchisee
shall refill, at its own expense, any excavation that is made by it
and shall leave all streets and public places in as good a condition
as that prevailing before removal and without affecting electrical
or telephone cable wires or attachments. The indemnification and insurance
provisions, the security fund, and the construction and performance
bonds shall continue in full force and effect during the period of
removal and until full compliance by the franchisee with the provisions
of this section.
(3)
(4)
The County may seek legal and equitable relief to enforce the provisions
of this section.
(5)
The termination of a franchise does not affect any of the rights
of the County under any provision of law.
G.
Termination on account of certain assignments or appointments.
(1)
Any franchise shall be deemed revoked 120 days after an assignment
for the benefit of creditors or the appointment of a receiver or trustee
to take over the business of a franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors,
or other action or proceeding. The franchise may be reinstated at
the County's sole discretion if within that one-hundred-twenty-day
period:
(a)
The assignment, receivership or trusteeship is vacated; or
(b)
The assignee, receiver, or trustee fully complies with the terms
and conditions of this chapter and the applicable franchise agreement
and executes an agreement, approved by a court, under which it assumes
and agrees to be bound by the terms and conditions of this chapter,
the terms and conditions of the franchise agreement, and any other
conditions established or required by applicable law.
(2)
In the event of foreclosure or other judicial sale of any of the
facilities, equipment, or property of a franchisee, the County may
revoke the franchise, following a public hearing before the Board,
by serving notice on the franchisee and the successful bidder, in
which event the franchise and all rights and privileges of the franchise
will be revoked and will terminate 30 calendar days after serving
such notice, unless:
H.
Relation to insurance and indemnity requirements. Recovery by the
County of any amounts under insurance, the security fund, the performance
bond, or letter of credit, or otherwise does not limit a franchisee's
duty to indemnify the County in any way; nor shall such recovery relieve
a franchisee of its obligations under a franchise, limit the amounts
owed to the County, or in any respect prevent the County from exercising
any other right or remedy it may have.
A.
CONTROL
TRANSFER
(1)
(a)
(b)
(c)
(d)
(e)
(2)
Definitions. In this section the following words have the meanings
indicated, except to the extent otherwise expressly provided in a
franchise agreement:
[Amended 9-17-2008 by Bill No. 2008-15]
The legal or practical ability to exert actual working control
over the affairs of a franchisee, either directly or indirectly, and
whether by contractual agreement, majority ownership interest, a lesser
ownership interest, or other means.
A transaction in which:
An ownership or other right, title, or interest of more than
10% for voting interests or 20% for nonvoting interests in a franchisee
or its cable system is transferred, sold, assigned, leased, sublet,
or mortgaged, directly or indirectly, in whole or in part;
There is any change of control of a franchisee;
The rights or obligations held by a franchisee under the franchise
are transferred, directly or indirectly, to another party;
Any change or substitution occurs in the managing general partners
of a franchisee; or
A franchisee, or its corporate parent at any level, enters into
a transaction that materially increases, directly or indirectly, the
debt that is to be borne by the cable system in a manner that may
adversely affect system rates or services.
"Transfer" does not include a transaction involving only persons
who own, are owned by, or are under common ownership with the franchisee
if the transaction does not materially affect the ultimate control
of the franchisee or the sources and amounts of funds available to
the franchisee.
B.
Franchise obligations. A franchise is a privilege that is in the
public trust and personal to the franchisee. A franchisee's obligations
under its franchise involve personal services whose performance involves
personal credit, trust, and confidence in the franchisee.
C.
Approval required. Except for the installation of facilities for
the franchisee by a subcontractor who works under the franchisee's
direct control and supervision, a franchisee may not assign or convey
to any entity any right or authority with respect to the use or occupation
of the County's public rights-of-way or construction in them.
In particular, the franchisee may not obtain permits or construct
facilities on behalf of any other affiliated or unaffiliated entity
under this franchise.
D.
Application for transfer.
(1)
Promptly, but at least 120 calendar days before the contemplated
effective date of a transfer, the franchisee shall submit to the County
a written application for approval of the transfer. The application
shall provide complete information on the proposed transaction, including
details on the legal, financial, technical, and other qualifications
of the transferee and on the potential impact of the transfer on subscriber
rates and service. Except as otherwise provided in this subsection,
at a minimum, the application shall include:
(a)
A complete and unredacted copy of the agreements to effectuate
the proposed transaction and all schedules, exhibits, and other documents
attached to them or referred to in them that are not otherwise publicly
available;
(b)
Information sufficient to demonstrate the legal, financial,
and technical qualifications of the proposed transferee;
(c)
Information sufficient to demonstrate whether the proposed transaction
will have any adverse financial impact on the franchisee or the cable
system, including capital investments and projected income statements
and cash flow statements covering the lesser of five years or the
remainder of the franchise term and clearly explaining all assumptions
made in them;
(d)
A general description of the anticipated management structure
of the post-transfer cable system and of any financing to be used
in connection with the proposed transaction; and
(e)
Information sufficient to determine any potential adverse impact
of the proposed transaction on subscriber rates and service.
(2)
If any of the information required by Subsection D(1) is confidential or proprietary, the franchisee shall:
(a)
Clearly mark those portions of the document as confidential
or proprietary; or
(b)
Omit those portions of the documents, substitute a specific
description of the contents of the omitted material, and provide a
written certification that the material is confidential or proprietary
and unrelated to the County's review of the transfer and that
the County may promptly review the materials at a mutually convenient
time and place.
(3)
At the franchisee's option, the franchisee may notify the County of the proposed transaction in general terms at least 150 days prior to the contemplated effective date of a transfer and request that the County waive, reduce, or modify some or all of the information requirements specified in Subsection D(1). To the extent consistent with applicable law, the County may grant in writing all or part of the request, without waiving any right the County may have to request that the information be provided after the initial application is filed.
(4)
The County will protect information that the franchisee claims to
be confidential or proprietary to the extent allowed by applicable
law.
(5)
To determine whether to grant or deny a transfer, the County may
inquire into all qualifications of the prospective transferee and
any other matters the County deems necessary. The franchisee and any
prospective transferee shall reasonably assist the County in any inquiry
and, if they fail to do so, the request for transfer may be denied.
E.
Approval of transfer. In determining whether to grant or deny an
application for a transfer, the County may consider:
(1)
The legal, financial, and technical qualifications of the transferee
to operate the cable system;
(2)
Any potential impact of the transfer on subscriber rates or services;
(3)
Whether the incumbent cable operator is in compliance with its franchise
agreement and applicable law and, if not, whether the proposed transferee
will cure any noncompliance;
(4)
Whether the proposed transferee owns or controls any other cable
system in the County and whether the transfer may eliminate or reduce
competition in the delivery of cable service in the County; and
(5)
Whether operation by the transferee or approval of the transfer would
have other adverse effects that may lawfully be considered by the
County.
F.
Consequences of transfer without approval. A transfer of a franchise,
franchisee, or cable system or of control over them, including by
forced or voluntary sale, merger, consolidation, receivership, or
any other means, may not occur without the County's prior consent,
as required by this chapter. If a transfer occurs without the County's
prior written consent, the franchisee shall notify the County promptly.
A transfer without the County's prior written consent:
G.
Liability of franchisee.
(1)
In addition to any other liability provided by law, a franchisee
is liable under its franchise for a transfer that violates the terms
of its franchise, whether the transfer is caused in whole or in part
by:
(2)
A franchisee is responsible for ensuring that the intent of this
section is carried out. If for any reason an event occurs that would
require the County's approval under this section, whether or
not the event is directly or indirectly within the franchisee's
control, the event constitutes a transfer for purposes of the franchise
agreement and applicable law.
H.
Closing documents. Upon the County's request, a franchisee shall
provide the County with a complete copy of the closing documents after
the closing of a transfer.
A.
Applicability of chapter.
(2)
In applying this chapter to an open video system, "franchisee" shall
be taken to refer to the open video system operator, "cable system"
to the open video system, "franchise" to any authorization granted
by the County to the open video system operator, and similar terms
shall apply similarly.
B.
Application for open video system authorization.
(1)
A person proposing to use public rights-of-way to install devices
for the operation of an open video system shall first obtain authorization
from the County for such use. Such a person may apply for such authorization
by submitting an application containing:
(a)
The name and address of the applicant and an identification
of the ownership and control of the applicant, including the names
and addresses of the 10 largest holders of an ownership interest in
the applicant and affiliates of the applicant, and all persons with
ownership interest in the applicant and its affiliates of 3% or more;
the persons who control the applicant and its affiliates; all officers
and directors of the applicant and its affiliates; and any other business
affiliation and cable system ownership interest of each named person.
(b)
A detailed description of the physical facilities the applicant
proposes to place in public ways.
(c)
Any information that may be reasonably necessary to demonstrate compliance with the requirements of federal law and with this Subsection B.
(d)
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application
and certifying that the application meets all federal and state law
requirements.
(2)
The County may, at its discretion and upon request of an applicant, waive in writing the provision of any of the information required by this Subsection B.
(3)
Upon the County's grant of open video system authorization,
the applicant shall pay to the County $25,000. This payment shall
be nonrefundable and shall be used to offset in whole or in part any
costs incurred by the County in granting the authorization. In addition,
the County may require the applicant to reimburse the County for any
additional reasonable out-of-pocket expenses the County incurs in
considering the application, including consultants' fees.
C.
Fee in lieu of franchise fee. An open video system operator shall
pay to the County a fee in lieu of the franchise fee required of a
cable operator, pursuant to the procedures and conditions specified
in a cable franchise and generally herein.
D.
Public, educational, and governmental access obligations. An open
video system operator shall be subject to obligations pertaining to
public, educational, and governmental access pursuant to applicable
law and to the requirements herein.
E.
Right-of-way usage. An open video system operator shall be subject
to all requirements of state and local law regarding authorization
to use or occupy the public rights-of-way, except to the extent specifically
prohibited by federal law. FCC approval of an open video system operator's
certification pursuant to 47 U.S.C. § 573 shall not be taken
to confer upon such operator any authority to use or occupy the public
rights-of-way that such operator would not otherwise possess.
A.
Discriminatory practices prohibited.
(1)
A franchisee may not deny service or access or otherwise discriminate
against subscribers, PEG access facility users, or any individual
on the basis of income, race, color, religion, national origin, age,
sexual orientation, or sex.
(2)
A franchisee shall adhere to the equal employment opportunity requirements
of federal, state, and local laws and regulations.
(3)
A franchisee shall operate its system 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, and other agencies having legitimate
use for the system and may not arbitrarily exclude any person from
its use.
B.
Subscriber privacy. A franchisee's policy with regard to personally
identifiable information shall be consistent with the applicable provisions
of federal and state law.
[Amended 12-15-2015 by Bill No. 2015-07]
A.
Duties of the County Administrator. The County Administrator, either
directly or through a duly appointed designee, shall have the responsibility
for overseeing the day-to-day administration of this chapter and franchise
agreements. The County Administrator shall be empowered to take all
administrative actions on behalf of the County, except for those actions
specified in this chapter that are reserved to the Board of County
Commissioners. Such actions that the County Administrator shall be
empowered to take, either directly or through a duly appointed designee,
shall include, but are not limited to, providing a cable operator
with notice of and opportunity to cure any franchise violation, failure
to substantially comply with the material terms of a franchise, or
failure to provide a quality of service that is reasonable in light
of community needs, pursuant to 47 U.S.C. § 546(c) through
(d). The County Administrator may recommend that the Board of County
Commissioners take certain actions with respect to a franchise. The
County Administrator shall keep the appropriate body apprised of developments
in cable and provide them with assistance, advice and recommendations
as appropriate.
B.
Duties of the Board of County Commissioners.
(1)
Sole authority. The Board of County Commissioners shall have the
sole authority to regulate rates for cable service, grant franchises,
authorize the entering into of franchise agreements, modify franchise
agreements, renew franchises, revoke franchises, authorize the transfer
of a franchise, and impose penalties pursuant to this chapter.
(2)
Additional powers and duties. The Board of County Commissioners or
its designee shall have the following general powers and duties in
addition to other powers provided in this chapter:
(a)
Invite, receive, review, and evaluate applications for franchises.
(b)
Encourage the use of access channels among the widest range
of institutions, groups, and individuals within the County.
(c)
Audit all franchise records as necessary or appropriate and,
in the Board's discretion, require the preparation and filing
of information additional to that required herein.
(d)
Retain experts and consultants to assist in its work under this
chapter.
(e)
Conduct periodic evaluations of cable systems and, pursuant
thereto, consider amendments to this chapter or franchise agreements.
(f)
Arrange for and conduct public hearings.
(g)
Seek to resolve disagreements among franchisees, subscribers,
and public and private users of system facilities.
A.
No recourse against the County. A franchisee has no recourse against
the County or its officials, boards, commissions, agents or employees
for any loss, costs, expenses, or damage arising out of any provision
or requirement of the franchise or because of the enforcement of the
franchise. This section does not preclude recourse by a franchisee
if the loss, costs, expenses, or damages arise from willful misconduct
by the County.
B.
Force majeure.
(1)
If a franchisee's performance of any of the terms, conditions,
obligations, or requirements of the franchise is prevented or impaired
due to any cause beyond the franchisee's reasonable control,
the inability to perform shall be excused and penalties or sanctions
may not be imposed. The franchisee shall notify the Director in writing
within 30 days of its discovery of the occurrence of an event beyond
its reasonable control.
(2)
Causes beyond a franchisee's reasonable control or causes not
reasonably foreseeable include, but are not limited to, acts of God
and civil emergencies. The County and the franchisee may further define
in the franchise agreement those conditions to be considered as force
majeure.
C.
Rights and remedies.
(1)
The County may intervene in any suit or proceeding that relates to
a County franchise.
(2)
Specific mention of the materiality of any of the provisions herein
is not intended to be exclusive of any others for the purpose of determining
whether any failure of compliance hereunder is material and substantial.
(3)
A franchisee is not relieved of its obligation to comply with any
of the provisions of this chapter or the franchise agreement by reason
of any failure of the County to enforce prompt compliance.
D.
Connections to system; use of antennas. A franchisee may not require,
as a condition to providing cable service, a subscriber or potential
subscriber to remove any existing antenna structures for the receipt
of over-the-air television signals.
E.
Calculation of time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter, or payment is required under this
chapter or any franchise agreement, and a period of time or duration
for the fulfillment of doing thereof is prescribed and is fixed herein,
the time shall be computed so as to exclude the first and include
the last day of the prescribed or fixed period of time.
F.
Severability. If any term, condition, or provision of this chapter
shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision which had been held invalid is no longer
invalid, said provision shall thereupon return to full force and effect
without further action by the County and shall thereafter be binding
on the franchisee and the County.