[Ord. No. 2007-56 §1, 12-10-2007]
A.
Definitions. The words and phrases used in this Section
of this Chapter shall have the meaning as set forth in Section 67.2677,
RSMo., or if not defined therein, shall have such meanings as established
by City Code.
B.
Franchise Fee.
[Ord. No. 2023-40, 10-23-2023]
1.
Pursuant to Section 67.2689, RSMo., and as partial compensation
for use of the City's public rights-of-way, each video services
provider or other person providing cable services or video services
within the City shall, to the extent permitted by law, pay to the
City a fee on the gross revenues from such video services provided
in the geographic area of the City at the rate as follows:
a.
Beginning August 28, 2023, a franchise fee rate of four and
one-half percent (4.5%);
b.
Beginning August 28, 2024, a franchise fee rate of four percent
(4%);
c.
Beginning August 28, 2025, a franchise fee rate of three and
one-half percent (3.5%);
d.
Beginning August 28, 2026, a franchise fee rate of three percent
(3%); and
e.
Beginning August 28, 2027, a franchise fee rate of two and one-half
percent (2.5%);
|
Provided, however, if Section 67.2689, RSMo., is further amended,
superseded, or is preempted by Federal regulation or Statute, the
City will charge the maximum allowable franchise fee rate upon video
service providers. The franchise fee shall be paid on the provider's
gross revenues on or before the last day of the month following the
end of each calendar quarter. The City may further adjust the video
service provider fee as permitted in Section 67.2689, RSMo., if necessary.
|
2.
Such franchise fee payment shall be made as required by Section
67.2689, RSMo. The City shall have the right to audit any video services
provider as authorized by Section 67.2691, RSMo. Late payments shall
accrue interest due to the City compounded monthly at one and one-half
percent (1.5%) or such other maximum rate as may be established by
law.
C.
Customer Service Requirements. All video services providers
providing service within the City shall adopt and comply with the
minimum customer service requirements set forth in Section 67.2692,
RSMo. Notice or receipt of this Section by a video services provider
shall be deemed notice of the City invoking such customer service
requirements.
D.
Rights-Of-Way Regulation — Indemnification — Permits
And Compliance With Other Laws. Video services providers shall comply with the requirements of Sections 67.2707, 67.2709 and all applicable ordinances and regulations consistent with Sections 67.1830 to 67.1846, RSMo., relating to use of the City's rights-of-way. Each video services provider shall indemnify and hold harmless the City and its officers, employees and agents from any loss or damage, including, but not limited to, attorneys' fees, as provided in such ordinances or regulations, but in no event less than the obligation on video services providers set forth in Section 67.2695, RSMo. The City may require documentation of such indemnification by written agreement or other instrument to the extent permitted by law. In addition, video services providers shall be subject to and comply with such supplementary provisions relating to placement, screening and location of facilities as provided in Section 400.315 of this Code, or private property, and such other applicable laws of the City, except as may be otherwise validly pre-empted. Notwithstanding any other ordinance to the contrary, no facilities to be used for video services shall be installed without obtaining a permit from the City authorizing the location and plans for such facilities; provided that this provision shall not apply to installation of otherwise lawful and authorized poles or wires.
E.
Public, Educational And Governmental Channels. Each video
services provider shall designate a number of channels for public,
educational and governmental programming consistent with Section 67.2703,
RSMo.; provided that any greater number of channels as may be required
in the incumbent cable franchise or franchise ordinance shall be required
pursuant to Section 67.2703.2, RSMo. The City shall bear no cost relating
to the transmission, availability or maintenance of such channels
unless expressly authorized by the City in writing and approved by
the Governing Body. Incumbent cable operators and other video services
providers shall provide support for such public, educational and governmental
channels consistent with Section 67.2703.8, RSMo.
1.
Continued obligations. The obligations of a cable
service provider or video services provider as set forth in any existing
cable services or video services franchise or ordinance shall also
continue to apply to the full extent permitted by applicable law.
2.
Reservation of rights. The City retains all rights
in Sections 67.2675 through 67.2714, RSMo., inclusive, and may take
any and all actions permitted by law to exercise such rights or to
enforce such obligations on providers of video service.
3.
Notice. A copy of this Section shall be delivered
to each video services provider operating in the City after notice
to the City that such provider is authorized to provide service within
the City; provided that the provisions of this Section shall, to the
extent permitted by law, not be affected by any claimed or actual
failure of a service provider to have received delivery of a copy
of this Section.
[Ord. No. 2001-20 §1, 4-10-2001; Ord. No. 2007-56 §3, 12-10-2007; Ord. No. 2019-03, 1-14-2019]
A.
Title.
This Chapter may be referred to and cited as the "Utilities and Communications
Services Code" or herein as the "code" of the City of Overland.
B.
Applicability; Preemption. The requirements of this Code shall apply
to the full extent of the terms herein, including on all excavations
and use, construction, operation, and maintenance of facilities or
structures in the rights-of-way of the City, and shall be limited
in scope or application only to the extent as may be required by applicable
Federal or State law, including such changes in applicable law as
may be hereinafter enacted. If any Section, Subsection, sentence,
clause, phrase, or portion of this Code is now or in the future superseded
or preempted by State or Federal law or found by a court of competent
jurisdiction to be unauthorized, such provision shall be automatically
interpreted and applied as required by law. No provisions of this
Code shall be disregarded pursuant to this Subsection except on express
determination by the City to such effect based on specific factual
circumstances. Because numerous types of users and uses of the rights-of-way
may be subject to various or changing regulatory schemes under Federal
or State law, any such limitation or qualification that may be applicable
to less than all users and uses of the rights-of-way are not duplicated
herein, but are nevertheless incorporated herein, whenever application
is so required by law, including but not limited to applicable provisions
of Chapter 67, RSMo., and other applicable Missouri and Federal law.
Nothing in this Code shall be interpreted to unilaterally deprive
any person of any rights or obligations imposed by any binding and
existing valid ROW use agreement, franchise, or contract during the
term thereof and shall impose obligations on any such person additional
to those included in such ROW use agreement, franchise, or contract
except where prohibited by applicable law. The failure of the City
to enforce any provision herein or the failure of any person to comply
with any provision herein shall not be a waiver of the City's right
to enforce such provisions nor shall it in any way constitute evidence
or agreement by the City that such person has a valid existing ROW
use agreement or franchise. The provisions of this Code shall apply
irrespective of whether a provider is determined to be operating pursuant
to a valid franchise or ROW use agreement.
C.
Preservation Of Police Power Authority.
1.
Compliance With Laws. In performing activities or exercising
its rights and obligations under any agreement or franchise, the ROW
user shall comply with all applicable Federal, State, and local laws,
ordinances, regulations and policies, including, but not limited to,
all laws, ordinances, regulations, and policies relating to construction
and use of public property, heretofore and hereafter adopted or established.
2.
ROW Users Subject To Other Laws, Police Power.
a.
Zoning, Safety, And Building Code Compliance. ROW users shall
at all times be subject to the lawful exercise of the police powers
of the City, including but not limited to all police powers regarding
zoning, supervision of the restoration of the rights-of-way, building
and safety regulations, and control of the rights-of-way. Installation
of all facilities in the rights-of-way are subject to and must be
in compliance with all zoning and safety and building code requirements.
b.
No Waiver. No action or omission of the City shall operate as
a future waiver of any rights of the City under this Code. Except
where rights are expressly granted or waived by a permit or other
agreement, they are reserved, whether or not expressly enumerated.
3.
Abandonment And Unusable Facilities.
a.
Abandoned Facility Requirements. ROW users owning facilities
in the rights-of-way shall not abandon or otherwise cease to use the
facilities for longer than one (1) year unless, prior to doing so,
the ROW user satisfies one of the following:
(1)
Provides written notice of such intention, and
removes its facilities in compliance with all requirements and replaces
or restores any damage or disturbance caused by the removal at its
own expense; or
(2)
Provides information satisfactory to the City that
the ROW user's obligations for its facilities in the rights-of-way
will be lawfully assumed by another authorized ROW user, including
proof of a franchise, ROW use agreement, or license; or
(3)
Submits to the City a proposal and instruments
for transferring ownership of its facilities to the City. If the ROW
user proceeds under this Subsection, the City may, at its option:
b.
Nuisance. Facilities abandoned or otherwise left unused in violation
of this Code are deemed to be a nuisance. The City may exercise any
remedies or rights it has at law or in equity, including, but not
limited to:
D.
Public Inspection Of Records. Certain information required to be filed with the City pursuant to this Code is subject to inspection and copying by the public pursuant to the provisions of the Missouri Open Records Act, Section 610.010 et seq., RSMo. Notwithstanding any ordinance or provision to the contrary, the City may disclose any proposed or existing facilities locations of a ROW user as deemed in the public interest and as may be established by City policy establishing requirements for notification and/or joint installation of facilities.
E.
Indemnification. Every ROW user, as a condition of use of the rights-of-way,
shall at its sole cost and expense fully indemnify, protect, defend
(with counsel for the City acceptable to the City), and hold harmless
the City, its elected officials, officers, employees, and agents from
and against any and all claims, demands, suits, proceedings, and actions,
liability and judgment by other persons for damages, losses, costs,
and expenses, including attorney fees arising, directly or indirectly,
in whole or in part, from the action or inaction of the ROW user,
its agents, representatives, employees, contractors, subcontractors,
or any other person for whose acts the ROW user may be liable, in
constructing, operating, maintaining, repairing, restoring, or removing
facilities, or use of the rights-of-way, or the activities performed,
or failed to be performed, by the ROW user under this Code or applicable
law, or otherwise, except to the extent arising from or caused by
the sole or gross negligence or willful misconduct of the City, its
elected officials, officers, employees, agents, or contractors. Nothing
herein shall be deemed to prevent the City or any agent from participating
in the defense of any litigation by their own counsel at their own
expense. Such participation shall not, under any circumstances, relieve
the person from the duty to defend against liability or its duty to
pay any judgment entered against the City or its agents. This indemnification
shall survive the expiration or termination of any ROW use agreement,
franchise, license, permit, other authorization, or use of the rights-of-way
for a period of five (5) years after the effective date of expiration
or termination; provided, however, that in accordance with § 67.5121(2),
RSMo., a ROW user which is a "Wireless Provider," as defined by Section
67.5111, RSMo., for and in relation to that wireless provider's operation
of a "small wireless facility," as defined by the Uniform Small Wireless
Facility Deployment Act within the ROW, shall only indemnify and hold
the City, its officers, and employees harmless against any damage
or personal injury caused by the negligence of the ROW user, its employees,
agents, or contractors.
F.
Enforcement — Attorneys' Fees. To the extent permitted by applicable
law, the City shall be entitled to enforce this Code and any ROW use
agreement, license, franchise, or other City authorization through
all remedies lawfully available, and the ROW user shall pay the City
its costs of enforcement, including reasonable attorneys' fees, in
the event that the ROW user is determined judicially to have violated
the terms of this Code or any ROW use agreement, license, franchise,
or other City authorization.
G.
ABANDONED
ACCESS FACILITIES
AFFILIATE
AGREEMENT
ANTENNA
APPLICANT
BASIC CABLE SERVICE
CABLE ACT
CABLE SERVICES
CABLE INTERNET SERVICES
CABLE SYSTEM
1.
2.
3.
4.
5.
CAPITAL COSTS
CHANNEL
CITY OR GRANTOR
CITY ENGINEER
CODE
COLLOCATION
COMMUNICATIONS
COMMUNICATIONS SERVICE
COMPLAINT
CONVERTER
DIRECT INCREMENTAL COSTS
DIRECTOR
DROP
EXCAVATION PERMIT
EXCAVATION, EXCAVATING, or EXCAVATE
EXCESS CAPACITY
FACILITIES MAINTENANCE or MAINTENANCE
FACILITIES MAINTENANCE PERMIT
FACILITIES or FACILITY
FCC
FRANCHISE
FRANCHISE FEE
1.
2.
3.
4.
5.
GOVERNING BODY
GRANTEE
GROSS RECEIPTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
GROSS REVENUES
1.
2.
3.
INSTITUTIONAL NETWORK OR I-NET
INSTITUTIONAL NETWORK SERVICES
INTERNET ACCESS SERVICE
LICENSE
LICENSEE
LINEAR FOOT
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
OPEN VIDEO SERVICES
PERMIT
PERSON
PROVIDER
PSC
PUBLIC BUILDING
RENEWAL
REPORTS
RESELLER SERVICE PROVIDER
RIGHTS-OF-WAY or ROW
RIGHTS-OF-WAY USE AGREEMENT or ROW USE AGREEMENT
ROW ORDINANCE
ROW USER
SERVICE INTERRUPTION
STANDARD INSTALLATION
SUBSCRIBER
SYSTEM
TELECOMMUNICATIONS ACT
TRAINED REPRESENTATIVE
USE FEE
Defined
Terms. For purposes of this Code, the following terms, phrases, words,
and their derivatives shall have the meanings set forth in this Section,
unless the context clearly indicates that another meaning is intended.
Words used in the present tense include the future tense, words in
the single number include the plural number, and words in the plural
number include the singular. The words "shall" and "will" are mandatory,
and "may" is permissive. Words not defined shall be given their common
and ordinary meaning.
Any equipment, materials, apparatuses, devices, or facilities
that are:
Means:
Each person, directly or indirectly, controlling, controlled
by, or under common control with the licensee; provided that affiliate
shall in no event mean any limited partner or shareholder holding
an interest of less than fifteen percent (15%) of such licensee, or
any creditor of such licensee solely by virtue of its status as a
creditor and which is not otherwise an affiliate by reason of owning
a controlling interest in, being owned by, or being under common ownership,
common management, or common control with such licensee.
A communications rights-of-way use agreement authorized herein
and executed by
the City and licensee.
Any device that transmits and/or receives radio waves for
voice, data or video communications purposes, including, but not limited
to, television, AM/FM radio, microwave, cellular telephone, communications
service, or otherwise. A combination of panels, boxes, or other antennas
physically connected and designed in conjunction to receive signals
at one (1) location in the system shall be considered one (1) antenna.
Any person applying for a rights-of-way use agreement, franchise,
license, any permit, or other authorization to install, maintain,
repair, or otherwise physically access facilities in the rights-of-way.
Any cable service tier that includes the lawful retransmission
of local television broadcast signals and any public, educational
and governmental access programming required by this Chapter to be
carried on the basic tier. Basic cable service as defined herein shall
be consistent with 47 U.S.C. Section 543(b)(7) (1997).
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, (codified at 47 U.S.C. Sections 521 — 611, 1982 and
Supp. V. 1987) as amended by the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications
Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time,
be amended.
Means:
The offering of direct access by a cable licensee to the
international computer network of both Federal and non-Federal interoperable
packet switched data networks to customers for a fee. For purposes
of an agreement, "cable internet service" shall mean
the direct access to the internet provided to customers over the cable
system and shall include the provision of incidental services or revenues
that are required by law to be treated under the same regulation as
such direct access service. Except as may be otherwise required by
applicable law or a binding provision of a franchise issued by the
City prior to the effective date of this Code, a provider receiving
revenue from cable internet service shall include such revenue in
the calculation of gross receipts from communications services and
shall be required to have a communications agreement with the City
governing the use of the rights-of-way for such purposes. Except as
may lawfully be required by the City or otherwise dictated by applicable
law, all agreements or franchises granted hereinafter shall authorize
use of the rights-of-way for cable internet service only pursuant
to a communications use agreement. All prior payments to the City
attributable to such cable internet service under a cable franchise
shall be irrefutably deemed to be lawful compensation for the past
use prospectively paid under any new communications agreement, irrespective
of any additional rates or terms required for any future use under
any new communications agreement.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the franchise
area, but such term does not include:
A facility that serves only to retransmit the television signals
of one (1) 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 47 U.S.C. Sections 201 — 226,
except that such facility shall be considered a cable system (other
than for purposes of 47 U.S.C. Section 541(c)) to the extent such
facility is used in the transmission of video programming directly
to subscribers, unless the extent of such use is solely to provide
interactive on-demand services;
An open video system that complies with Section 653 of the Cable
Act; or
Any facility of any electric utility used solely for operating
its electric utility system.
Costs associated with the purchase of assets, products or
other resources that will provide service for more than one (1) year
but shall not have any meaning inconsistent with generally accepted
accounting principles.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of carrying one (1)
industry standard video signal, in either analog or digital form.
At the time of the passage of this Chapter, analog standard channel
is defined as 6 MHz.
The City of Overland, Missouri.
The City Engineer, Director of Public Works, or other designated
City Official.
This "Utilities and Communications Services Code" and all
provisions therein established by this Chapter.
The shared use of facilities including, but not limited to,
the placement of conduit owned by more than one (1) rights-of-way
user in the same trench or boring and the placement of equipment owned
by more than one (1) user in the same or connected conduit. Collocation
does not include interconnection of facilities or the sale or purchase
of capacity (whether bundled or unbundled).
The transmission via the facilities, in whole or in part,
between or among points specified by the user, of information of the
user's choosing (e.g., data, video, voice) without change in the form
or content of the information as sent and received, regardless of
the statutory or regulatory scheme to which such transmissions may
be subject.
The transmission via facilities, in whole or in part, of
any writings, signs, signals, pictures, sounds, or other forms of
intelligence through wire, wireless, or other means, including, but
not limited to, any "telecommunications service," "enhanced service,"
"information service" or "Internet access service," and "cable Internet
service" as such terms are now, or may in the future be, defined under
Federal law, and including all instrumentalities, facilities, conduit,
apparatus ("communications facilities"), and services (among other
things, the receipt, forwarding, and delivery of telecommunications)
incidental to or designed to directly or indirectly facilitate or
accept such transmission. This term does not include "cable service,"
but these services shall be subject to separate cable franchising
requirements and application.
Any oral, written or electronic inquiry, allegation or assertion
made by a person regarding cable service or cable system operations.
An electronic device that converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber and, through the use of an appropriate channel selector,
permits a cable subscriber to view all authorized cable subscriber
signals delivered at designated converter dial locations. Converters
include all devices furnished to the subscriber and owned by the cable
provider.
The costs actually incurred by a cable provider in meeting
an obligation under its franchise which the provider would not otherwise
have incurred in order to either operate and conduct the business
of its cable system or meet another obligation of the franchise.
The Public Works Director of the City of Overland or his/her
designee.
The cable or cables that connect the ground block on the
cable subscriber's property to the nearest feasible point on the cable
system in order to receive cable service.
A permit authorizing excavation for the construction or installation
of facilities in the City's rights-of-way.
Any act by which earth, asphalt, concrete, sand, gravel,
rock, or any other material in or on the ground is cut into, dug,
uncovered, removed, or otherwise displaced, by means of any tools,
equipment, or explosives, except as excluded by applicable law.
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold, or other facility, including dark
fiber, in the rights-of-way that is used, or authorized by the rights-of-way
user to be used, by others.
The construction, installation, repair, upgrade, or other
physical access to the facility in the rights-of-way that does not
involve excavation.
A permit issued by the City for the ROW user to provide maintenance
to its facilities or otherwise perform work in the rights-of-way that
does not involve excavation but requires physical access to the facilities
in the rights-of-way.
Any equipment, installation, or structure located in the
rights-of-way, including, without limitation, cables, wires, lines,
poles, towers, antennas, conduit facilities, vaults, pedestals, transmitters,
meters, fiber, foundations, and any other equipment, infrastructure,
structures, or obstruction. Facilities shall not include lawful vehicular
parking or use, or pedestrian use.
Federal Communications Commission.
A binding and accepted ordinance for certain ROW users to
occupy the rights-of-way for the purpose of providing, transporting
or distributing electricity, gas, water, steam, lighting, energy,
or sewer service to any person or area in the City's limits and boundaries.
Any tax, fee, or assessment of any kind imposed by the City or other governmental entity on a cable service provider or its cable subscribers, or both, solely because of their status and activities as such, pursuant to Section 655.030 of this Code. The term "franchise fee" does not include:
Any tax, fee, or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their cable services but not including a tax, fee or
assessment that is unduly discriminatory against cable service providers
or cable subscribers);
Capital costs that are required by a cable franchise to be incurred
by a grantee for public, educational or governmental ("PEG") access
facilities;
Requirements or charges incidental to the award or enforcement
of a cable franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties, or liquidated
damages;
Any permit fee or other fee imposed under any valid right-of-way
ordinance; or
Any fee imposed under Title 17 of the United States Code.
The legislative body of the City.
A person who is granted a cable franchise and that person's
agents, employees, lawful successors, transferees or assignees, or
any other person providing cable communications by use of facilities.
All revenues received directly or indirectly by a licensee
or its affiliates for communications services originating, terminating
or otherwise rendered within the corporate limits of the City and
all revenue derived from the use of the communications services facilities.
Except to the extent as may be prohibited by law, such "gross receipts"
shall specifically include, but shall not be limited to, all revenue
of the licensee derived from the following:
Recurring local exchange service revenues for business and residence
which include basic telephone exchange service, touch tone, custom
calling services and measured local calls;
Recurring local exchange service revenues for public, semi-public
and private coin;
Local directory assistance (411);
Line status verification/busy interrupt;
Local operator assistance;
Information delivery service;
Cellular and other wireless communication services revenue;
provided that such revenues derive from a system having antennae or
other parts of the mobile system physically located within the rights-of-way;
Non-recurring local exchange service revenue which shall include
customer service for installation of lines, reconnection of service
and charge for duplicate telephone bills;
Revenue received by the licensee from reseller service providers
(except for revenues from reseller service providers that have a separate
enforceable agreement with the City providing for payment of gross
receipts of that reseller service provider);
Revenue from internet access services and including all high-speed
and traditional subscriber line charges or services (and including
cable internet service, unless such service revenues are validly required
to be included and are collected as gross revenues in a cable agreement
between licensee and the City);
Revenue from rent, physical use, collocation or sale of the
facilities, network elements, or a portion thereof for any purpose;
Late charges or interest received on gross receipts;
Any portion of the use fees collected by licensee from any person;
All other applicable revenues not listed herein.
|
"Gross receipts" shall not include uncollectable
debt, any Federal, State or local taxes separately stated on a customer's
bill. "Gross receipts" shall not include revenues from affiliates (1) where the affiliates have a separate enforceable agreement with the City providing for payment of such affiliate gross receipts or (2) where the affiliate does not utilize, transmit communications through, or connect to any part of the facilities or (3) where the affiliate pays to provider fair market value for the use of the facilities on terms available to all other providers and competitors and such compensation is included in provider's gross receipts (and provided that provider has sought from the City and been granted written exemption under this Subsection (3) after presentation of adequate proof and documentation provider qualifies for this exemption). In the event a licensee receives revenues for communications services or other activities within and without the City of which the specific portion attributed to operations in the City cannot be directly determined ("unallocated revenues"), "gross receipts", with
respect to such revenues, shall mean the portion thereof derived by
multiplying such revenues by a fraction, the numerator of which is
the gross receipts from the City and the denominator of which is the
total revenues of licensee attributable from the area generating such
unallocated revenues. All revenue from or relating to or connected
with communication services deriving from any billing address within
the City shall be presumed to be gross receipts of licensee, unless
demonstrated in writing to the contrary as to each such revenue.
|
Any revenue actually received by a grantee, or by any other
entity that is a cable operator on a grantee's cable system, including
the grantee's affiliates, from the operation of the grantee's cable
system to provide cable services. By way of illustration and not limitation,
this definition would include revenue derived from pay cable fees,
installation and reconnection fees, leased channel access fees; converter
rentals; franchise fees collected from subscribers; revenue from cable
internet service (if it is not required to be included in the gross
receipts of a separate binding agreement with the City as prescribed
in this Code); revenue from home shopping to the extent conducted
through a cable service; all cable service lease payments from the
cable system; payments or other consideration received by the grantee
from programmers for carriage of programming on the cable system and
accounted for as revenue under generally accepted accounting principles
("GAAP"); advertising revenues; revenues from data transmissions to
the extent these transmissions are considered cable services under
Federal law; payments or other consideration received by the grantee
for the use of the cable system to provide cable service and accounted
for as revenue under GAAP. Gross revenues shall include revenue received
by any entity other than the grantee where necessary to prevent evasion
or avoidance of the obligations under this Code or a franchise to
pay the applicable cable franchise fees. Revenues which are not directly
attributable to specific cable subscribers, including, but not limited
to, leased access fees, advertising revenues, and home shopping commissions,
shall be allocated among the franchising jurisdictions served by the
grantee's cable system on a per subscriber or other equitable basis
measured in a consistent manner from period to period. Gross revenues
shall not include:
To the extent consistent with GAAP, bad debt; provided however,
that all or part of any such bad debt that is written off but subsequently
collected shall be included in gross revenues in the period collected;
Amounts collected from cable subscribers for public, educational
and governmental access, provided however, this exclusion does not
limit a grantee's ability to pass through franchise-related costs
to the extent allowed by applicable law; or
Any taxes on cable services furnished by grantee which are imposed
directly upon any subscriber or user by the State, City or other governmental
unit and which are collected by grantee on behalf of said governmental
unit.
A communication network which is constructed or operated
by grantee and which is generally available only to cable subscribers
who are not residential subscribers. The I-Net shall consist of capacity,
fibers or both, from both within the primary cable network and/or
separately constructed networks that may be dedicated to governmental,
educational and other publicly funded users for two-way, broadband
communications. The I-Net includes all equipment and maintenance of
equipment required to make the capacity available including, but not
limited to, fiber and coaxial cable, cable modems, switching, routing,
transmitting and receiving necessary for the use of the network as
set out in the individual cable franchise.
The provision of an I-Net by a cable system operator to governmental,
educational and other non-profit, publicly funded users, as determined
by the City, pursuant to the terms of its franchise for non-commercial
applications including, but not limited to, two-way dedicated voice,
video, data and telephony channels connecting and interconnecting
user facilities.
The offering of direct access to the international computer
network of both Federal and non-Federal interoperable packet switched
data networks to customers for a fee. For purposes of this Code, internet
access service shall include the direct access to the internet or
internet connections including, but not limited to, all high-speed
and dedicated subscriber line ("DSL") communications connections to
the internet or otherwise and shall include the provision of incidental
services and related services, but not including revenue from independent
services such as internet web design or internet web hosting and the
sale of internet service modem. Except where otherwise stated, the
term "internet access service" shall include cable
internet service.
The rights and obligations extended by the City to a person
to use and occupy the rights-of-way for the purpose of installing
temporary facilities in the rights-of-way or incidental uses such
as ingress and egress facilities, lateral utility lines, mailboxes
or driveway aprons.
The party subject to a communications rights-of-way agreement,
or its successor, assigns, transferee or any party otherwise, using
the rights-of-way for communications services other than reseller
service providers.
The length in feet of cable, wire, fiber, conduit or other
linear facilities. Facilities that are physically connected, wrapped
or lashed as a single cable, conduit or bundle of cables or conduit
shall be considered a single facility for purposes of calculating
each linear foot, provided that each conduit or bundle of conduit
up to and including four (4) inches in exterior diameter shall constitute
a separate facility for calculating linear feet. Conduit having fiber
optic or other cable or wire installed within it shall not be considered
separate facilities but shall be considered part of the single "conduit"
or bundle for purposes of calculating linear feet. Each provider shall
be subject to a separate linear foot charge for facilities used by
provider and subject to this Code.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, normal business hours must
include some evening hours, at least one (1) night per week, and some
weekend hours.
Those cable services or conditions that are within the control
of a cable system franchise grantee. Those conditions which are ordinarily
within the control of grantee include, but are not limited to, special
promotions; pay-per-view events; rate increases; regular peak or seasonal
demand periods; and maintenance or upgrade of the cable system. Those
conditions that are not within the control of grantee include, but
are not limited to, natural disasters; civil disturbances; power outages;
telephone network outages; vandalism; public works projects for which
no advanced notice is given; and severe or unusual weather conditions.
Any video programming services provided to any person by
a licensee certified by the FCC to operate an open video system pursuant
to Section 47 U.S.C. 573, as may be amended, regardless of the facilities
used.
An excavation permit, facilities maintenance permit, or other
permit authorizing work in the ROW.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
A licensee or grantee or any person required to have a communications
service agreement or cable service franchise.
The Missouri Public Service Commission.
Any building owned or for the greater part occupied by the
City or other governmental unit.
A new communications service agreement or cable service franchise
granted to an existing provider.
Any and all non-trade secret documents and information required
to be completed and/or kept or filed by a grantee or licensee on order
of the Federal Communications Commission, State or City. In accordance
with applicable law, the City shall maintain such information as confidential
to the extent that the provider identifies specific information as
such.
A person providing communications service or cable service
within the City that does not have ownership, possessory interest,
or control of identifiable facilities in the rights-of-way, but instead
uses the rights-of-way by interconnecting with or using the network
elements of another ROW user utilizing the rights-of-way, and/or by
using excess capacity or bandwidth from a facility-based ROW user
with no right to physically access the facilities or ROW.
The surface and space on, above, and below every municipal
street, alley, road, highway, lane, or City rights-of-way in which
the City has an ownership interest or right of management, and including
such adjacent areas within such public ways within such City control,
except as may be limited herein or by applicable law. Rights-of-way
shall not include public property owned or leased by the City and
not intended for right-of-way use, including, but not limited to,
City Hall property, parks, or public works facilities.
The document granting consent by the City to use the City's
rights-of-way for the purpose of providing communication services
or for such other use for which a franchise or license is not applicable
and obtained as provided for herein.
Title V, including, but not limited to, Chapter 525, Article III, Excavations, of the City of Overland, Missouri, Municipal Code and such other ordinances that regulate, without limitation, the excavation, construction, and use of the rights-of-way by all persons and such other ordinances and regulations regulating the same.
Such persons and entities, whether a PSC-registered utility
or otherwise, owning, controlling, leasing, maintaining, using, or
installing facilities in the rights-of-way of the City, not otherwise
expressly exempted. A ROW user shall not include reseller service
provider.
The loss of picture or sound on one (1) or more channels
on the cable system.
Any service installation that can be completed using a drop
of one hundred twenty-five (125) feet or less.
Any person who or which lawfully elects to subscribe for
any purpose to cable service provided by a grantee by means of, or
in connection with, the cable system, and whose premises or facilities
are physically wired and lawfully activated to receive cable service
from grantee's cable system, including persons who receive cable service
without charge according to the terms of the Code or franchise.
The cables, wires, lines, towers, wave guides, optic fiber,
antennae, and any associated converters, equipment, or other facilities
designed and constructed for the purpose of producing, receiving,
amplifying or distributing communications to or from locations within
the City.
The Telecommunications Act of 1996 codified at Title 47 of
the Unites States Code.
Employees of a grantee who have the authority and capability
while speaking with a cable subscriber to, among other things, answer
billing questions, adjust bills, and schedule service and installation
calls.
The fee imposed by the City on licensee for use of the rights-of-way for communications services pursuant to Section 655.020 of this Code.
[Ord. No. 2001-20 §1, 4-10-2001]
A.
Unlawful To Operate Without An Agreement. It shall be unlawful
for any person to construct, operate, own or maintain communications
facilities or to provide communications services by use of facilities
in the rights-of-way in the City without a valid, unexpired rights-of-way
use agreement from the City, unless otherwise specifically authorized
under applicable Federal or State law, or otherwise provided by ordinance.
Unless otherwise provided hereinafter by City ordinance, a reseller
service provider shall not be required to obtain an agreement.
B.
Agreements Non-Exclusive. The authority granted by the City
in any agreement shall be for non-exclusive use of the rights-of-way.
The grantor specifically reserves the right to grant, at any time,
such additional agreements or other rights to use the rights-of-way
for any purpose and to any other person, including itself, as it deems
appropriate, subject to all applicable law.
C.
Nature Of Rights Granted By Any Agreement. Agreements shall
not convey title, equitable or legal, in the rights-of-way and shall
give only the right to occupy rights-of-way for the purposes and for
the period stated in this Code and as may be further limited by the
agreement. No agreement shall grant the right to use facilities owned
or controlled by the City or a third (3rd) party, without the consent
of such party, nor shall it excuse licensee from obtaining appropriate
access or pole attachment agreements before locating on the facilities
controlled or owned by the City or a third (3rd) party. All agreements
shall be deemed to incorporate and be limited by the provisions of
this Code and shall create rights solely applicable to licensee.
D.
Application And Application Fee Required.[1] Any person seeking to use the rights-of-way for any communications
service, or seeking renewal of an existing agreement, shall submit
a completed application on such form as approved by the City. Such
application shall be accompanied by a nonrefundable application fee,
in an amount as may be established by the City, to compensate the
City and defray in whole or part the City's costs in review, negotiation
and administration of any application filed under this Code. On request
of the City, the applicant shall provide such additional information
that is deemed necessary or appropriate to the City in reviewing the
application and proposed use of the rights-of-way. Licensee shall
be responsible for payment of any reasonable costs incurred by City
in processing these applications or in adapting or executing the agreement
for use by licensee to the extent such costs exceed the application
fees paid. The City may provide for the waiver of these application
fees and/or of use fees for use of the rights-of-way by other governmental
entities where such waiver is deemed by the City to be lawful and
in the public interest. The information provided by licensee shall
be certified as true and correct and licensee shall be responsible
to certify to the City any material changes to the information provided
in such completed application during the term of any agreement.
[1]
Cross Reference — As to current application fees, see
ord. no. 2000-66 on file in the city offices.
E.
Standard For Approval Or Renewal Of Agreements. The City
shall authorize agreements or renewals to any eligible licensee for
the right and privilege to construct, operate and maintain facilities
in, through and along the City's rights-of-way for the purposes of
supplying communications services on a non-exclusive basis within
the City subject, however, to the standards, terms and conditions
herein set forth within this Code, which shall be deemed incorporated
therein, and any special conditions as may be provided for in the
agreement. All licensees shall be required to obtain and maintain
any necessary and lawful permit, license certification, grant, registration
or any other authorization required by any appropriate governmental
entity including, but not limited to, the City, the FCC or the Missouri
Public Service Commission. In reviewing an application, the City may
consider prior conduct of the licensee in performance of its obligations
or compliance with the City's ordinances in the past, or the existence
of any outstanding violations or deficiencies. The City may deny or
condition any agreement where the proposed use would interfere with
the public use of the rights-of-way or otherwise conflict with the
legitimate public interests of the City or as otherwise provided by
law. The City may establish standard agreements setting forth the
minimum requirements for all licensees. Applications for agreements
may be approved, denied, or approved with conditions consistent with
applicable requirements of the Telecommunications Act or other applicable
requirements as may be necessary to fulfill the requirements and objectives
of this Code.
F.
Cable Service And Open Video Systems (OVS) — Separate Franchise
Or Agreement Required. An agreement for communications service
shall not provide licensee the right to provide cable service as a
cable operator (as defined by 47 U.S.C. Section 522(5)) within the
City. Upon licensee's request for a franchise to provide cable service
as a cable operator (as defined by 47 U.S.C. Section 522(5)) within
the City, the City shall timely negotiate such cable television services
franchise in good faith with licensee. A communications services agreement
shall also not permit licensee to operate an open video system, except
where otherwise expressly provided in the agreement or by separate
agreement, and licensee remits the maximum fees permitted by 47 U.S.C.
Section 573(c)(2)(B) and where licensee otherwise complies with FCC
regulations promulgated pursuant to 47 U.S.C. Section 573. Absent
such applicable agreement from the City, licensee shall be prohibited
from offering OVS service and any such service shall be considered
a breach of the agreement. Unless otherwise specified, any such new
agreement or amendment to an agreement shall obligate licensee to
pay a use fee of five percent (5%) on all gross revenues directly
or indirectly attributable to the provision of OVS service within
the City. The City may, at its option, negotiate with licensee to
exchange all or a part of the use fees for capacity or facilities
used for City or other public purposes. Any such exchange shall be
negotiated based on the licensee's cost of providing capacity or facilities
to the City and shall be credited towards the calculation of applicable
use fees.
G.
Use Of Rights-Of-Way — Police Powers — Licensee's Use
Subordinate. The licensee shall construct and maintain its
facilities in accordance with all applicable Federal, State and local
laws, including all permit requirements, and fee payments, and all
other City Codes and ordinances in effect as of the date of an agreement
or hereinafter adopted to the extent not in contravention of State
or Federal law. The grant of an agreement does not in any way impact
the continuing authority of the City through the proper exercise of
its Home Rule or statutory powers to adopt and enforce ordinances
necessary to provide for the health, safety and welfare of the public.
The City makes no express or implied representation or warranty regarding
its rights to authorize the installation or construction of facilities
on any particular segment of rights-of-way. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the licensee. The use of the rights-of-way
authorized by any agreement shall in all matters be subordinate to
the City's use and rights therein.
H.
Term. An agreement shall be effective for a term of five
(5) years from its effective date, unless the City reasonably determines
that a different term is warranted under the circumstances and consistent
with law.
I.
Use Fees. Unless otherwise established by the Governing Body, the
licensee shall pay to the City as monthly compensation for the use
of the rights-of-way a use fee equal to a monthly use fee not less
than the sum of:
[Ord. No. 2019-03, 1-14-2019]
1.
One thousand dollars ($1,000.00) per month for the first mile
of linear facilities, or part thereof, plus sixteen cents ($0.16)
per linear foot per month thereafter up to a monthly charge, effective
January 1, 2019, for any new agreements and upon expiration of any
current agreements, under this Subsection, of five thousand dollars
($5,000.00); Provided that all rights-of-way users shall be entitled
to a credit against the use fee due hereunder equal to the payment(s)
from such rights-of-way user in accordance with Section 67.1846, RSMo.;
|
Provided, however, such credit cannot exceed the amount due
under this Subsection and may not be carried forward or back to any
other time period and a credit shall not apply to any taxes paid under
protest or otherwise paid with qualification unless so required by
law.
|
J.
Bundled Services. To the extent licensee markets "bundled"
services, including combinations of services that may be subject to
an agreement and also a cable services franchise, licensee shall fairly
reflect to the City an appropriate and reasonable division of services
among the various services offered based on the actual value of each
separate service. Whether or not licensee separates services on a
subscriber's bill, it will provide to the City the amounts upon which
it will pay the communications services use fee and any applicable
taxes or fees based on the provision of communications service, and
the amounts upon which it will pay the franchise fee. Should licensee
engage in billing practices that, in the determination of the City,
do not fairly reflect an appropriate split of communications services
and cable services, the City will notify licensee in writing of its
determination. The parties will meet and discuss in good faith whether
the billing practices result in an unfair payment of fees to the City.
If the parties do not agree on an appropriate method of determining
which charges are subject to communications services use fees and
which are subject to the franchise fee, the parties may subject the
dispute to arbitration or may resort to other methods of dispute resolution,
including litigation. Fees or taxes which are not paid on the appropriate
division of bundled services receipts, when ultimately paid, will
be subject to all interest and penalties provided by the applicable
agreements. If licensee holds a cable service franchise, any fee that
could be lawfully attributed to gross receipts or alternatively "gross
revenues" under this Code shall be deemed to be subject to the higher
fee.
K.
Timing Of Payment Of Use Fees. Unless otherwise agreed to
in writing, all use fees shall be due and payable on a monthly basis
within sixty (60) calendar days of the close of each month for which
the payment applies (the "due date").
L.
Interest On Late Payments And Under Payments. If any use
fee, or any portion thereof, is not postmarked or delivered on or
before the due date, interest thereon shall accrue from the due date
until received, at the rate of one and one-half percent (1.5%) per
month, unless such other maximum rate is established by law.
M.
Fee Statement. Each use fee payment shall be accompanied
by a statement showing the manner in which the use fee was calculated
and in such format as may be required by the City. If any fee statement
is determined to understate the fee owed, then such additional amount
owed shall be made with a corrected statement, including interest
on said amount as provided herein. Within ninety (90) calendar days
following the end of the calendar year, each licensee shall submit
a statement, certified as true, setting forth its gross revenues,
the amount of linear foot and antennae within the facilities, and
describing what revenues or receipts (including each type of services)
were included and excluded in the fee calculations for the calendar
year, and describing any adjustments made in determining the use fee.
N.
No Accord And Satisfaction. No acceptance by the City of
any use fee shall be construed as an accord that the amount paid is
in fact the correct amount, nor shall acceptance of any use fee payment
be construed as a release of any claim of the City.
O.
Maintain Records. Licensee shall at all times maintain complete
and accurate books of account and records of the business, ownership,
and operations of the licensee with respect to the system in a manner
that allows the City to determine whether the licensee has properly
calculated its use fee in compliance with this Chapter. Should the
City reasonably determine that the records are not being maintained
in such manner, the licensee shall correct the manner in which the
books and/or records are maintained so that the licensee comes into
compliance with this Section. All financial books and records which
are maintained in accordance with FCC regulations and the regulations
of any governmental entity that regulates utilities in Missouri and
generally accepted accounting principles shall be deemed to be acceptable
under this Section. Such books and records shall be maintained for
a period of at least three (3) years. The failure to provide information
or maintain records as required herein shall be grounds for forfeiture
or revocation of an agreement.
P.
Right Of Inspection. The City, or a third (3rd) party designated
by the City for the purposes of determining compliance with this Section,
shall have the right to inspect, examine and copy records at a location
acceptable to the City during normal business hours and the right
to audit and to recompute any amounts determined to be payable under
this Code, whether the records are held by the licensee or any other
person that collects or receives funds related to the use fee obligations
or the provision of communications services over a licensee's communications
system in the City. Licensee shall also provide reasonable access
to records necessary to verify compliance with the terms of the agreement.
The franchisee or licensee shall pay the City's audit expenses, costs
or travel charges, including an advance payment of such costs estimated
by the City, provided that the frequency of such audits shall not
exceed one (1) per year. In addition to the annual audit, a franchisee
or licensee shall make such records available for review upon reasonable
notice by the City, provided that the City agrees to bear its own
costs for any such additional review of records. In addition to other
relevant information, the City reserves the right to request information
showing circuit account ID, billing account ID, city of origination,
city of termination within Greater St. Louis area, monthly recurring
revenue, non-recurring revenue, turn-up dates, Common Language Location
Identifier (CLLI) codes for all Greater St. Louis customers, names
of CLEC's, reseller's or IXC's leasing bandwidth, facilities mileage
figures necessary to substantiate licensee license fee calculations.
Q.
Description Of Service. Franchisee shall on an annual basis
provide the City with a description of new local communications services
offered within the City during the prior six (6) month period. The
first (1st) annual report shall also provide a listing of each separate
type of service or bundled service offered during the initial annual
period. Any individual or bundled service or item for which the provider
has a separate charge shall be considered a separate service under
this paragraph.
R.
Payment Of Taxes — Use Fee Not A Tax. The use fees required
herein shall be in addition to, not in lieu of, all taxes, charges,
assessments, licenses, fees and impositions otherwise applicable that
are or may be imposed by the City. The use fee is compensation for
use of the rights-of-way and shall in no way be deemed a tax of any
kind. The licensee shall be fully responsible for the payment of all
applicable taxes.
[Ord. No. 2019-03, 1-14-2019]
S.
Duty To Notify City Of Resellers. Within thirty (30) days
of the licensee carrying any communications of any reseller service
provider through licensee's facilities, licensee shall notify the
City of the name and address of such reseller service provider, the
reseller rates or tariffs to be paid to licensee relating to such
reseller, and provide to City a statement as to whether the reseller
service provider will be obtaining a separate agreement with the City
to directly pay the use fees for the revenues attributable to such
reseller service provider.
T.
Duty Of Reseller To Provide Notice Of Operation Within City —
Facilities To Be Subject To Franchise Or Agreement. Prior
to providing service within the City or transmitting communications
through facilities in the City, a reseller service provider shall
provide written notice to the City of the intent to do so and shall
include (1) the certification of the applicable regulatory approval
necessary to undertake such service or communications, and (2) the
name of the provider(s) owning the facilities within the City through
which the communications shall be transmitted. It shall be unlawful
for any provider or reseller service provider not having its own franchise
or agreement authorizing such communications to transmit communications
for commercial purposes through any facility owned by a provider that
does not have a valid franchise or agreement with the City authorizing
the use of such facilities.
U.
Sale Or Lease Of Facilities. Except as otherwise may be
provided by law or agreement, licensee shall not lease, sell, or otherwise
transfer possession or control of the facilities, or any portion thereof,
for any purpose to any person that has not obtained a duly issued
agreement, or other grant by the City to use the rights-of-way and
which includes the authority to use or maintain such leased or transferred
facilities. Licensee shall provide the City at least thirty (30) days'
prior notice of such intended sale, lease or transfer of possession
or control.
V.
Assignment Of Agreement. The licensee shall not sell, transfer,
lease, assign, sublet or dispose of in whole or in part, either by
forced or voluntary sale, or by ordinary sale, consolidation or otherwise,
an agreement or any of the rights or privileges granted by an agreement
without the prior written consent of the City; provided that such
transfer may occur without written consent of the City to a wholly
owned parent or subsidiary, or between wholly owned subsidiaries,
upon thirty (30) days' prior notice to the City. Such consent shall
not be unreasonably withheld. The City reserves the right to be reimbursed
for its reasonable costs relating to a transfer of ownership. Licensee
shall not change its name under which it does business with the public
without providing at least thirty (30) days' prior notice to the City.
W.
Forfeiture Of Agreement And Privilege. In case of failure
on the part of the licensee, its successors and assigns to comply
with any of the provisions of this Code or an agreement, or if the
licensee, its successors and assigns should do or cause to be done
any act or thing prohibited by or in violation of this Code or the
terms of an agreement, the licensee, its successors and assigns shall
forfeit all rights and privileges permitted by this Code and any agreement,
and all rights hereunder shall cease, terminate and become null and
void, provided that said forfeiture shall not take effect until the
City shall carry out the following proceedings: Before the City declares
the forfeiture or revocation of an agreement, it shall first serve
a written notice upon the company setting forth in detail the neglect
or failure complained of, and the company shall have thirty (30) days
thereafter, or such other reasonable period established by the Governing
Body, in which to cure the default by complying with the conditions
of an agreement and fully remedying any default or violation. If at
the end of such thirty (30) day period the City determines that the
conditions have not been complied with and that the company did not
reasonably and in the public interest require more than thirty (30)
days to cure the default, the City shall take action by an affirmative
vote of the Governing Body present at the meeting and voting to terminate
the agreement, setting out the grounds upon which said agreement is
to be forfeited or revoked. Nothing herein shall prevent the City
from invoking any other remedy or from declaring immediate forfeiture
where the default is incapable of being cured by licensee, including
where such defaults or violations have repeatedly occurred.
[Ord. No. 315 §§1 —
2, 3-19-2001; Ord. No.
2001-20 §1, 4-10-2001]
A.
Cable Franchise Requirements.
1.
General findings regarding cable services. The City
finds that cable service has become an integral part of its citizens'
lives, and that evolving cable systems have the potential to play
an even more dramatic role in the future, providing great benefits
and advanced capabilities to residents of the City. At the same time,
the rapidly emerging role of cable systems as an integrated broadband
communications platform necessitates a finding that the local government
has a legitimate and vital role to play in regulating cable services
in a manner that ensures high quality customer service while at the
same time fostering competition to the extent permitted under law.
The Governing Body further finds that the public convenience, safety
and general welfare can best be served by establishing regulatory
powers that are vested in the City.
2.
Nature of rights granted by an cable franchise. Cable
franchises shall not convey title, equitable or legal, in the rights-of-way,
and shall give only the right to occupy rights-of-way, for the purposes
of providing cable services and as may be further limited by the cable
franchise. No franchise shall grant the right to use facilities owned
or controlled by the City or a third (3rd) party, without the consent
of such party, nor shall a franchise excuse grantee from obtaining
appropriate access or attachment agreements before locating its facilities
on the facilities owned or controlled by the City or a third (3rd)
party. All franchises shall be deemed to incorporate and be limited
by the provisions of this Code and shall create rights for the sole
and exclusive use of grantee. Any franchise or other authorization
for cable services, in whatever form granted, shall not grant or include:
(i) any other permit or authorization required for the privilege of
transacting and carrying on a business within the City required by
the ordinances and laws of the City, including the provision of communications
services; (ii) any permit, agreement or authorization required in
connection with operations in the rights-of-way including, without
limitation, permits and agreements for placing devices on or in poles,
conduits, or other structures, whether owned by the City or a private
entity, or for excavating or performing other work in or along the
rights-of-way.
3.
Unlawful to operate without a franchise. It shall be unlawful for any person to construct, operate or maintain a cable system or to provide cable service or other competing multichannel video services in the City without a franchise, unless otherwise specifically authorized under applicable Federal or State law. Consistent with Section 655.050 any such person shall be subject to a fine of five hundred dollars ($500.00) per day. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Code to the fullest extent allowed by law including, but not limited to, the payment of a franchise fee. This Section shall not apply to a grantee who has properly asserted its intent and is diligently pursuing renewal of the franchise pursuant to 47 U.S.C. Section 546.
4.
Franchise not exclusive.
a.
Any franchise granted pursuant to this Chapter shall be non-exclusive.
The grantor specifically reserves the right to grant, at any time,
such additional franchises for a cable television system or any component
thereof to any other person including itself, as it deems appropriate,
subject to this Code and applicable Federal and State law.
b.
The terms and conditions of any cable franchises granted or renewed
pursuant to this Chapter shall be, when taken as a whole, no less
burdensome or more beneficial than any other cable franchises granted
or renewed pursuant to this Chapter, when taking into consideration
the context in which the earlier terms were adopted. Provided however,
that nothing herein shall be construed as requiring the use of identical
terms or conditions, or limit the enforceability of conditions that
are freely negotiated.
c.
Nothing in this Subsection shall be deemed to create any cause of
action or claim of breach for any franchisee or third (3rd) party.
5.
Franchise territory. Every cable franchise shall
apply to the entire territorial area of the City, as it exists now
or may later be configured.
6.
Federal, State and City jurisdiction.
a.
This Chapter and Code shall be construed in a manner consistent with
all applicable Federal and State laws.
b.
In the event that the Federal or State Government discontinues pre-emption
in any area of cable communications over which it currently exercises
jurisdiction in such manner as to expand rather than limit municipal
regulatory authority, City may, if it so elects, adopt rules and regulations
in these areas to the extent permitted by law and the reasonable exercise
of the City's Police powers.
c.
The provisions of this Chapter and Code shall apply to all cable
franchises granted or renewed after or simultaneously with the effective
date of this Chapter. This Chapter and Code shall also apply to all
existing franchises, to the extent not inconsistent with the terms
of any such franchise or applicable law. A cable franchise (including
all of grantee's particular rights, powers, protections, privileges,
immunities and obligations associated therewith as the same exist
on the date hereof) shall constitute a legally binding contract between
the City and grantee and, as such, cannot be amended, modified or
changed by the grantor without the consent of grantee in any manner
whatsoever, whether by ordinance, rule, regulation or otherwise, to
impose on grantee more stringent or burdensome requirements or conditions.
In the event of any conflict between the terms and conditions of a
franchise and the provisions of this Chapter or Code and other generally
applicable regulatory ordinances of the City, the specific terms of
the franchise shall control; provided however, that nothing herein
contained shall preclude the City from the proper exercise of its
Police powers.
d.
In the event of a change in State or Federal law which by its terms
would require the City to amend this Chapter or Code, the parties
shall modify the existing franchise in a mutually agreed upon manner.
7.
Initial franchise applications. Any person desiring
an initial franchise for a cable system shall file an application
with the City. A non-refundable application fee as may be hereinafter
established by the City shall accompany the application, which shall
not be considered or credited against the collection of applicable
franchise fees.
8.
Consideration of initial applications.
a.
Upon receipt of any application for an initial franchise, the City
Administrator or other designated administrative official shall prepare
a report and make his or her recommendations respecting such application
to the Governing Body.
b.
A public hearing shall be held prior to any initial franchise grant
at a time and date approved by the Governing Body. Within thirty (30)
days after the close of the hearing, the Governing Body shall make
a decision based upon the evidence received at the hearing as to whether
or not the franchise(s) should be granted and, if granted, subject
to what conditions.
9.
Franchise renewal. Franchise renewals shall be in
accordance with applicable law including, but not necessarily limited
to, the Cable Communications Policy Act of 1984, as amended. The City
and a grantee, by mutual consent, may enter into renewal negotiations
at any time during the term of the franchise.
10.
Grant of additional franchise and competing service. Since competing or overlapping cable franchises may have an adverse
impact on the public rights-of-way, on the quality and availability
of services to the public and may adversely affect an existing provider's
ability to continue to provide the services it is presently providing
under a franchise, the City may issue a franchise in an area where
another grantee is operating only following a public hearing to consider
the potential impact which the grant of an additional franchise may
have on the community. In considering whether to grant one (1) or
more additional franchises, the City shall specifically consider,
and address in a written report, the following issues:
a.
The positive and/or negative impact of an additional franchise on
the community.
b.
The ability and willingness of the specific applicant in question
to provide cable services to the entire franchise area which is served
by the existing cable provider. The purpose of this Subsection is
to ensure that any competition which may occur among grantees will
be on terms which when taken as a whole do not give a competitive
advantage to one grantee over another.
c.
The amount of time it will take the applicant to complete construction
of the proposed cable system and activate cable service in the entire
franchise area; and whether the applicant can complete construction
and activation of its cable system in a timely manner.
d.
The financial capabilities of the applicant and its guaranteed commitment
to make the necessary investment to erect, maintain and operate the
proposed cable system for the duration of the franchise term. In order
to ensure that any prospective grantee does have the requisite current
financial capabilities, the City may request equity and debt financing
commitment letters, current financial statements, bonds, letters of
credit, or other documentation to demonstrate to the City's satisfaction
that the requisite funds to construct and operate the proposed cable
system are available.
e.
The quality and technical reliability of the proposed cable system,
based upon the applicant's plan of construction and the method of
distribution of signals, and the applicant's technical qualifications
to construct and operate such cable system.
f.
The experience of the applicant in the erection, maintenance and
operation of a cable system.
g.
The capacity of the rights-of-way to accommodate one (1) or more
additional cable systems and the potential disruption of those rights-of-way
and private property that may occur if one (1) or more additional
franchises are granted.
h.
The disruption of existing cable service and the potential that the
proposed franchise would adversely affect the residents of the City.
i.
The likelihood and ability of the applicant to continue to provide
competing cable service to subscribers within the entire franchise
area for the duration of the franchise.
j.
Such other information as the City may deem appropriate to be considered
prior to granting any competing or overlapping franchise.
11.
Permits for non-franchised entities. The City may issue a license to a person other than the grantee to permit that person to traverse any portion of a grantee's franchise area within the City in order to provide cable service outside but not within the City. Such license or easement, absent a grant of a franchise in accordance with this Chapter, shall not authorize nor permit said person to provide cable service of any type to any home or place of business within the City. Such license shall be granted pursuant to the requirements of Section 655.020 of this Code.
B.
Design, Services And Capabilities.
1.
Cable system design. Every grantee shall offer cable
service that meets the current and future cable-related needs of the
City. Such cable service shall, at a minimum, be comparable to cable
services offered by that grantee or its affiliates operating any headend
serving the City and surrounding municipalities in St. Louis County.
The franchise shall incorporate a description of the grantee's cable
system including the general design and capabilities of the cable
system to identify for the City how the cable system will meet the
current and future cable needs of the City.
2.
The cable system. Every cable system shall pass
by every single-family dwelling unit and multiple-family dwelling
unit within the franchise area in accordance with line extension policies
set forth in this Chapter. Service shall be provided to subscribers
in accordance with the schedules and line extension policies specified
in this Chapter unless otherwise specified in the franchise.
3.
Drops to public buildings.
a.
Every grantee shall provide installation of at least one (1) cable
drop and one (1) outlet, provide monthly basic cable service, without
charge, to public buildings specified by the City in the applicable
franchise where the drop does not exceed two hundred (200) feet. All
accredited K — 12 schools shall also receive one (1) cable drop
and one (1) outlet and basic cable service at no charge, subject to
the above two hundred (200) foot limit. The location of such cable
drops and outlets shall be determined in cooperation with the management
of the public building to which the connection is to be made. Following
the City's designation of additional public building(s) to receive
cable service, a grantee shall complete construction of the drop and
outlet within ninety (90) days if the City requests construction,
weather permitting and subject to payment of the direct incremental
costs of installation in excess of two hundred (200) feet. Drops and
outlets that are in addition to the one (1) free drop and outlet required
by this Section shall be provided by a grantee at the cost of grantee's
time and material. Alternatively, at an institution's request, the
institution may add outlets at its own expense, as long as such installation
meets the grantee's standards, which shall be made readily available
to any public entity upon request. Additional outlets and services
to public buildings are subject to the applicable commercial rate.
b.
All such cable service outlets shall not be utilized for commercial
purposes. The City shall take reasonable precautions to prevent any
use of a grantee's cable system in any inappropriate manner or that
may result in loss or damage to the cable system. Users of such outlets
shall hold the grantee harmless from any and all liability or claims
arising out of their use of such outlets, other than for those claims
arising out of improper installation or faulty equipment.
c.
In instances where the drop line from the feeder cable to the public
building, school or library exceeds two hundred (200) feet, the grantee
may charge for its direct incremental costs that are incurred in exceeding
this length.
4.
School and library cable modems. Unless otherwise
specified in the applicable franchise, upon activation and commercial
offering of two-way cable modem service within the franchise area,
every grantee shall provide upon written request a courtesy cable
modem and cable internet service without charge to every State accredited
K — 12 school and library in the franchise area.
5.
Use of grantee's facilities. Subject to any applicable
State or Federal regulations, the City shall have the right to install
and maintain, free of charge, upon the poles and within the underground
pipes and conduits of a grantee any wires and fixtures desired by
the City for public purposes. Provided however, that (a) such use
by grantor does not unreasonably interfere with the current or future
use by grantee; (b) such use by grantor is restricted to non-commercial
public purposes; and (c) grantor takes reasonable precautions to prevent
any use of grantee's facilities in any manner that results in an inappropriate
use thereof, or any loss or damage to the cable system. For the purposes
of this Subsection, "public purposes" includes, but
is not limited to, the use of the structures and installations for
grantor fire, Police, traffic, utility, and/or signal systems, but
not for cable system purposes in competition with the grantee. The
grantee shall not deduct the value of such use of its facilities from
its franchise fee and/or other fees payable to grantor.
6.
Upgrade of system. Every grantee shall upgrade its
cable system (herein referred to as the "system upgrade"), if required,
as set forth in its respective franchise.
7.
Emergency alert capability. Every grantee shall
at all times provide the system capabilities to comply with the FCC's
Emergency Alert System rules and regulations. Provided, that at a
minimum these capabilities will remain in place even if the FCC at
some future dates eliminates the current regulations.
8.
Periodic review. The franchise shall include provisions
to provide for a "periodic review" between the City and a grantee
to evaluate changes in law, technology or service and reasonable procedures
for mutually agreed upon modifications to the franchise to incorporate
changes identified as desirable or necessary as a result of any such
periodic review.
9.
Closed captioning and descriptive audio service. Every grantee will make audio descriptive service and closed captioning
capabilities available to the extent required by State and Federal
law.
10.
Standby power. Within twelve (12) months of activation
of the system, the grantee shall provide standby power generating
capacity capable of providing at least twelve (12) hours of emergency
supply at the cable system headend. For nodes, two (2) hours with
emergency power supply. Every grantee shall maintain standby power
system supplies throughout the major trunk cable networks capable
of providing emergency power within the standard limits of commercially
available power supply units.
11.
Status monitoring. Every grantee shall provide an
automatic status monitoring system, or a functional equivalent, when
the cable system has been activated for interactive service provided
that such status monitoring is technically and economically feasible.
12.
HDTV/ATV conversion. Conversion to High Definition
Television/Advanced Television (HDTV/ATV) formats shall occur in accordance
with applicable law.
C.
Institutional Network And Public Educational And Governmental Access
Or "PEG Access".
1.
Institutional network access channels.
a.
Every grantee shall, to the extent required in its franchise and
subject to applicable law, provide or fund on an equal basis with
other cable providers whose franchises are granted or renewed after
the adoption of this Code an institutional network, PEG access facilities
or other public internet services or some combination of the same
for use by governmental, educational and other publicly-funded or
non-profit local community service organizations identified by the
City. Such institutional network requirements shall at a minimum satisfy
the community need for such facilities as determined by the Governing
Body for the period of the applicable franchise.
b.
Every grantee shall also provide a channel or channels, bandwidth
capacity, service and funding for separate public, educational and
government access channels, as specified in their franchise. All such
PEG access channels shall be available to all subscribers as part
of their basic cable service. Given the on-going changes in the state
of technology as of the effective date of this Code, absent the express
written consent of the City, grantee shall transmit PEG access channels
in the format or technology utilized to transmit all of the channels
on the basic cable service tier. Oversight and administration of the
PEG access channels shall be set forth in the franchise.
2.
Proof of performance testing. To ensure high quality service on the institutional network and access channels, proof of performance testing throughout the system and on all channels will be made available to the City to the extent required in a franchise. Every grantee will monitor access channels throughout the cable system to determine the level of technical quality of access channels is in conformance with FCC rules and to ensure that the level of technical quality on such access channels is the same as on other channels within the cable system. In the event that a complaint is made by a programmer of any access channels, the grantee shall immediately investigate the complaint and determine whether the grantee is in compliance with the technical standards set forth in Section 655.030(D)(2) of this Chapter.
D.
Technical Standards And Customer Service Practices.
1.
General technical standards and customer service practices.
a.
This Chapter incorporates cable service technical standards and establishes
customer service practices that every grantee must satisfy.
b.
Every grantee shall maintain such equipment and keep such records
as required to comply with all customer service and technical standards
required by these regulations and other applicable laws. The grantee
shall at all times assist and cooperate with grantor in explaining,
interpreting and understanding such records or reports.
2.
Test and compliance procedure. Tests for a cable
system shall be performed periodically in a manner so as to conform
with FCC specifications. The tests may be witnessed by representatives
of the City and written test reports shall be made available to the
City upon request. If any test locations fail to meet the performance
standards, the grantee shall be required to indicate what corrective
measures have been taken and shall have the site retested.
3.
Cable system office hours and telephone availability.
a.
Every grantee shall maintain a conveniently located customer service
center, which shall include a place where subscribers may pay their
bills, pick up and return converter boxes and comparable items, and
receive information on the grantee and its services. Such service
center shall be open at least during normal business hours. Grantee
shall also maintain a publicly listed toll-free or local telephone
line that is available to subscribers twenty-four (24) hours a day,
seven (7) days a week.
b.
Every grantee shall have trained company representatives available
to respond to subscriber telephone inquiries during normal business
hours.
c.
After normal business hours, the telephone access line may be answered
by a service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be responded
to by a trained representative on the next business day.
d.
Under normal operating conditions, telephone answer time by a trained
customer service representative or automated response unit, including
wait time, shall not exceed thirty (30) seconds when the connection
is made. If a call must be transferred, transfer time shall not exceed
thirty (30) seconds. Under normal operating conditions, these standards
shall be met no less than ninety percent (90%) of the time, measured
on a quarterly basis.
e.
Under normal operating conditions, a grantee shall establish an inbound
telephone system upon which subscribers shall not receive a busy signal
more than three percent (3%) of the time.
f.
A grantee will not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards above
unless a historical record of complaints indicates a clear failure
to comply.
4.
Cable channels for commercial use, local commercial television
signals and non-commercial educational television. A franchisee
shall designate channel capacity for commercial and non-commercial
use by persons unaffiliated with the franchisee as required by Federal
law, consistent with the principle of fairness and equal accessibility
to all persons and the City to the extent they have a legitimate use
for such capacity.
5.
Technical standards.
a.
Any cable system within the City shall meet or exceed the technical
standards set forth in 47 C.F.R. Section 76.601 et seq., and any other
applicable Federal technical standards, including any such reasonable
standards as hereafter may be amended or adopted by the Governing
Body in a manner consistent with Federal law.
b.
A franchisee shall use equipment generally used in high-quality,
reliable, modern systems of similar design including, but not limited
to, back-up power supplies at the fiber nodes and headends capable
of providing power to the system for a minimum of two (2) hours in
the event of an electrical outage, plus adequate portable generators
to cover longer outages. The obligation to provide back-up power supplies
requires the franchisee to install equipment that will (1) cut in
automatically on failure of commercial utility AC power, (2) revert
automatically to commercial power when it is restored, and (3) prevent
the standby power source from powering a "dead" utility line. In addition,
the design and construction of a system shall include modulators,
antennae, amplifiers, and other electronics that permit and are capable
of passing through the signal received at the headend with minimal
alteration or deterioration.
6.
Interconnection.
a.
A franchisee shall design its system so that it may be interconnected
with any or all other systems or similar communications systems in
the area. Interconnection of systems may be made by direct cable connection,
microwave link, satellite or other appropriate methods.
b.
Upon receiving the directive of the Governing Body to interconnect,
the franchisee shall immediately initiate negotiations with the other
affected system or systems so that costs may be shared proportionately
for both construction and operation of the interconnection link.
c.
The Governing Body may in writing grant reasonable extensions of
time to interconnect or rescind its request to interconnect upon its
own initiative or upon petition by the franchisee to the Governing
Body. The Governing Body shall rescind the request if it finds that
the franchisee has negotiated in good faith and the cost of interconnection
would cause unreasonable increase in subscriber rates.
d.
No interconnection shall take place without prior written approval
of the Governing Body. A franchisee seeking approval for interconnection
shall demonstrate that all signals to be interconnected will comply
with FCC technical standards for all classes of signals and will result
in no more than a low level of distortion.
e.
The franchisee shall cooperate with any interconnection corporation,
regional interconnection authority or State or Federal regulatory
agency which may be established for the purpose of regulating, facilitating,
financing or otherwise providing for the interconnection of communications
systems beyond the boundaries of the City.
7.
Integration of advancements in technology. A franchise
agreement may require a franchisee to periodically upgrade its cable
system to integrate advancements in technology as may be necessary
to meet the needs and interests of the community in light of the costs
thereof and/or to submit periodic reports on cable technology and
competition to the City Clerk.
8.
System design review process. In addition to any
requirements included in a franchise agreement, at least sixty (60)
days prior to the date construction of any rebuild is scheduled to
commence, the franchisee shall provide the City Clerk with notice
that a detailed system design and construction plan is available for
review by the City at a specific office of the franchisee located
in the metropolitan St. Louis area, 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 — cable, fiber and 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 tree trunk maps for the system. The
system design will be shown on maps of industry standard scale using
standard symbols and shall depict all electronic and physical features
of the cable plant. The City may review the plan and, within thirty
(30) days of the date the plan is made available for City review,
submit comments to the franchisee. Within fifteen (15) days of receipt
of the comments, the franchisee shall notify the City Clerk that a
revised plan is available for review by the City at a specific office
located in the metropolitan St. Louis area, either incorporating the
comments or explaining why the comments were not included. The City's
review does not excuse any non-performance under a franchise agreement,
this Chapter or other applicable law.
9.
Emergency alert system. A franchise shall comply
with 47 U.S.C. Section 544(g) and all regulations issued pursuant
thereto.
10.
Service calls and installations. Under normal operating
conditions, each of the following standards must be met no less than
ninety-five percent (95%) of the time as measured on a quarterly basis:
a.
Standard installations will be performed within seven (7) business
days after an order has been placed. "Standard installations" are
those that are located up to one hundred twenty-five (125) feet from
the existing distribution system.
b.
The appointment window alternatives for installations, service calls,
and other installation activities will be either a specific time or
within a maximum four (4) hour time block during normal business hours.
The grantee may schedule service calls and other installation activities
outside of normal business hours for the express convenience of a
subscriber, if so requested.
c.
A grantee may not cancel an appointment with a subscriber after the
close of business on the business day prior to the scheduled appointment.
d.
If a grantee's representative is running late for an appointment
with a subscriber and will not be able to keep the appointment as
scheduled, the subscriber must be contacted. The appointment must
be rescheduled, as necessary, at a time which is convenient for the
subscriber.
11.
Repairs and interruptions.
a.
Under normal operating conditions and excluding conditions beyond
the control of a grantee, every grantee will begin working on service
interruptions and outages within a reasonable time frame but in no
event later than twenty-four (24) hours after the service interruption
or outage becomes known. The grantee must begin actions to correct
other service problems on the business day following notification
of such service problems.
b.
The term "service interruption" means the loss of
picture or sound on one (1) or more cable channels or cable internet
service connectivity.
c.
Work on requests for service, excluding conditions beyond the control
of a grantee, must begin by the next business day after notification
of the problem and shall exercise all due diligence to complete the
work in the shortest period of time possible.
d.
Outside repairs to cable plant which cannot be made by the initial
service technician dispatched shall under normal operating conditions
be rescheduled within twenty-four (24) hours of the originally scheduled
service call. The subscriber does not need to be home for outside
plant and line repairs.
e.
A grantee may interrupt service only for good cause and for the shortest
time reasonably possible, including interruption for system upgrade,
maintenance and repair. Subject to the reasonable safety precautions
for the benefit of the grantee's employees and agents, routine maintenance
shall occur at times that affect the fewest number of subscribers,
generally between 12:00 A.M. and 6:00 A.M. To the extent that specific
neighborhoods will be affected by a planned outage, such as during
an upgrade, the grantee shall provide advance notice through telephone
calls, door hangers and/or other reasonable means.
f.
A grantee shall provide a credit equivalent to a pro rata of the
monthly cable rate for each service interruption exceeding four (4)
hours in any twenty-four (24) hour period, unless it is demonstrated
that the subscriber caused the outage, or the outage was planned as
part of an upgrade or other work that occurred between the hours of
12:00 A.M. and 6:00 A.M. of which the City and the subscriber received
appropriate prior notification. A subscriber is entitled to a full
refund for any cable system or disruption to a pay-per-view event.
These credits and refunds shall be made available upon request by
subscriber describing the time, date and nature of the disruption
experienced.
g.
Technicians capable of performing service related emergency repairs
and maintenance must be available twenty-four (24) hours a day, including
weekends and holidays.
h.
No charge shall be made to a subscriber for any service call relating
to grantee owned and grantee maintained equipment after the initial
installation of cable service unless the problem giving rise to the
service request can be demonstrated by grantee to have been:
(1)
Caused by the negligence or malicious destruction of cable equipment
by the subscriber; or
(2)
A problem established as having been non-cable system or cable
service in origin.
|
|
A grantee may also assess a service charge for repeat service
calls to the same address in instances where the problem was not caused
by the grantee.
|
i.
Cable drop lines, cable trunk lines, or any other type of outside
wiring that comprise part of a grantee's cable system that are located
underground shall be placed in such locations pursuant to City Code,
and the surrounding ground shall be restored as close as is practical
to its condition immediately prior to such underground construction
activity within a reasonable period of time after connection to the
cable system. Except for a grantee's maintenance facilities, no cable
drop line, cable trunk line, or any other type of outside wiring shall
be permitted to lay upon the ground for an unreasonable period of
time within the City, except for the express purpose of being immediately
connected to the cable system of grantee. The requirements of this
Subsection shall apply to all installation, reinstallation, service
or repair commenced by a grantee within the City during normal operating
conditions.
12.
Disconnections and downgrades.
a.
If any subscriber fails to pay a properly due monthly subscriber
fee, or any other properly due fee or charge, the grantee may disconnect
the subscriber's outlet; provided however, that such disconnection
shall not be effected until after the later of: (i) thirty (30) days
after the due date of said delinquent fee or charge; or (ii) fifteen
(15) days after delivery to subscriber of written notice of the intent
to disconnect. If a subscriber pays before expiration of the later
of (i) or (ii), the grantee shall not disconnect. Provided however,
that this Section does not apply to subscribers disconnected as a
result of insufficient funds.
b.
No subscriber may be disconnected without prior written notice.
c.
No subscriber may be disconnected for non-payment if payment of outstanding
balances is made before the scheduled date for disconnection, up to
and including the last business day before the scheduled disconnection.
d.
No subscriber may be disconnected due to a grantee's failure to timely
or correctly post payments.
e.
No subscriber may be disconnected outside of normal business hours
or on Sundays or holidays.
f.
Absent extenuating circumstances, a grantee is not required to reconnect
a subscriber with an undisputed outstanding balance.
g.
A grantee is permitted to refuse orders for premium or "pay-per-view"
services from subscribers with a record of non-payment.
h.
A grantee may disconnect subscriber premises that are responsible
for signal leakage in excess of applicable Federal limits. A grantee
may effectuate such disconnection without advance notice, provided
that a grantee shall immediately notify the subscriber with door tags
and/or telephone calls or other reasonable means. If the source of
the signal leakage is remedied, and the subscriber was not the cause
of such leakage, the grantee shall reconnect the subscriber at no
charge. If the subscriber was the cause of the signal leakage, the
grantee may charge a reasonable reconnection fee. For purposes of
this Section, use of FCC-approved navigation devices does not in and
of itself constitute subscriber caused signal leakage.
i.
Subscribers may request disconnection or a downgrade of cable service
at any time. A grantee may not impose any charge for service delivered
after the requested date of disconnection. As provided under Federal
law, subscribers may request a downgrade at no charge if made within
thirty (30) days of a rate increase.
j.
Nothing in this Chapter or Code shall limit the right of a grantee
to deny cable service to any household or individual which has a negative
credit or cable service history with the grantee, which may include
non-payment of bills, theft or damage to the grantee's equipment,
outstanding balances, or threats or assaults on employees of the grantee
in the course of their employment. In the event cable service is denied,
the grantee will give notice to the subscriber of the right to contact
the appropriate authority, as designated by the City.
13.
Communications between grantee and subscribers.
a.
Notifications to subscribers.
(1)
Every grantee shall provide written information to subscribers
on each of the following topics at the time of installation, at least
annually to all subscribers, and at any time upon request of a subscriber:
(a)
Product and services offered;
(b)
Prices and options for programming services and conditions of
subscription to programming and other services and facilities;
(c)
Installation and service maintenance policies;
(d)
Instructions on how to use services;
(e)
Channel positions of programming offered on a system; and
(f)
Billing and complaint procedures, including the name, address
and telephone number of the City.
(2)
Subscribers will be given thirty (30) days' advance notice of
any changes in rates, programming services, or channel positions,
if the change is within the control of the grantee. All such notice
shall be provided in writing by any reasonable means. In addition,
the grantee shall notify subscribers thirty (30) days in advance of
any significant changes in other information required by this Section.
Notwithstanding the foregoing or any provision of this franchise to
the contrary, a grantee shall not be required to provide prior notice
of any rate change that is the result of a regulatory fee, franchise
fee, or any other fee, tax assessment, or change of any kind imposed
by any government entity on the transaction between the grantee and
the subscriber.
b.
Billing.
(1)
Bills must be clear, concise and understandable. Bills must
be fully itemized including, but not limited to, basic and premium
service charges and equipment charges.
(2)
Bills must clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
(3)
In case of a billing dispute, a grantee must respond to a written
complaint from a subscriber within twenty-one (21) calendar days.
(4)
Credits for service shall be issued no later than the subscriber's
next billing cycle after determination that the credit is warranted.
c.
Late charges. A grantee may impose a monthly fee
for any delinquent balance owed by a subscriber, subject to the following:
14.
Complaint log. Subject to the privacy provisions
of 47 U.S.C. Section 521 et seq., every grantee shall prepare and
maintain written records of all complaints made to them and the resolution
of such complaints, including the date of such resolution. Such written
records shall be on file at the office of grantee. A grantee shall
make available to grantor a written summary of such complaints and
their resolution upon request.
15.
Parental control. Every grantee shall make available
to any subscriber upon request a "lockout" device for blocking both
video and audio portions of any channel(s) of programming entering
the subscriber's premises. Such device shall be provided at a reasonable
charge, except to the extent that Federal law specifically provides
otherwise. A grantee may, however, require a reasonable security deposit
for the use of such a device.
16.
Service area.
a.
Area served. A franchisee shall build and maintain its system so that within a reasonable period of time, as established by the franchise, it is able to provide service to all households desiring service located within the franchise area without any construction charges (other than standard connection charges and drop charges as indicated in Subsection (16)(b)(5)). A franchisee must build and maintain its system so that it can extend service to households desiring service located outside the franchise area in accordance with Subsections (16)(b)(1) through (16)(b)(6). Connections to commercial customers shall be governed by Subsection (16)(b)(7).
b.
Line extension requirements.
(1)
For areas within the City limits but outside the franchise area, including areas annexed after the effective date of its franchise, a franchisee shall upon request of the Governing Body extend its trunk and distribution system to serve households desiring service without any construction charge (other than standard connection charges and drop charges as indicated in Subsection (16)(b)(5), unless the franchisee demonstrates to the Governing Body's satisfaction evidenced by written decision that circumstances justify a specific charge where the new subscriber requesting service is located within five hundred (500) feet from the termination of the cable system, or the number of potential subscribers to be passed by such extension is equal to or greater than twenty (20) potential households per cable mile measured from any point on the system.
(2)
In circumstances where that the factors requiring line extension
do not exist as set forth in the foregoing paragraph (1) are not met,
the franchisee shall on the request of the Governing Body extend its
cable system based upon the following cost-sharing formula. The franchisee
shall contribute an amount equal to the construction costs per mile
multiplied by the length of the extension in miles, multiplied by
a fraction where the numerator equals the number of potential households
per mile at the time of the request and the denominator equals twenty
(20). Households requesting service as of the completion of construction
can be required to bear the remainder of the total construction costs
on a pro rata basis.
(3)
The "construction costs" are defined as the
actual turnkey cost to construct the entire extension including lines,
materials, electronics, pole make-ready charges and labor, but not
the cost of drops except as provided below. If the franchisee proposes
to require a household requesting extension to make a contribution
in aid of extension, it must: (1) notify the Governing Body in advance;
(2) send the Governing Body a copy of the invoice showing the amount
actually charged each household requesting extension; and (3) within
thirty (30) days of completion of the extension, furnish proof of
the total cost of the extension and make any appropriate refunds if
the total cost is less than the amounts charged in advance of construction.
At the end of each calendar year, the franchisee must calculate the
amount any contributing person would have paid based on the number
of persons served at that time and pay back the difference between
the amount which would then be owed. The franchisee shall report such
calculations and refunds to the City Clerk by the end of January of
the following year.
(4)
Installation of drops. Except as Federal rate
regulations may otherwise require, the franchisee shall not assess
any additional cost for service drops of one hundred fifty (150) feet
or less unless the franchise demonstrates to the Governing Body's
satisfaction, evidenced by written decision, that circumstances justify
a specific charge. Where a drop exceeds one hundred fifty (150) feet
in length, a franchisee may charge the subscriber for the difference
between franchisee's actual costs associated with installing a one
hundred fifty (150) foot drop and the franchisee's actual cost of
installing the longer drop, provided that drop length shall be the
shorter of (1) the actual length of installed drop or (2) the shortest
practicable distance to the point where the franchisee would be required
to extend its distribution system.
(5)
Location of drops. Except as Federal rate regulations
may otherwise require, in any area where a franchisee would be entitled
to install a drop above ground, the franchisee will provide the subscriber
the option to have the drop installed underground but may charge the
subscriber the difference between the actual costs of the above-ground
installation and the actual cost of the underground installation.
(6)
Time for extension. A franchisee must extend
service to any person who requests it (1) within seven (7) days of
the request within the franchise area or where service can be provided
by activating or installing a drop within one hundred fifty (150)
feet of the existing distribution system; (2) within thirty (30) days
of the request for service outside the franchise area where an extension
of one-half (½) mile or less (but more than one hundred fifty
(150) feet) is required; or (3) within six (6) months for service
outside the franchise area where an extension of one-half (½)
mile or more is required.
(7)
Because existing conditions can vary dramatically, franchisee
may in its discretion require commercial customers to pay all reasonable
costs of connection (including time and materials) in excess of the
average cost of connection for residential services.
c.
Newly annexed areas. In such cases where mandatory
extension of the cable system is required for areas newly annexed
after the effective date of the franchise, but the technical capabilities
of the then-existing cable system are such that the minimum technical
performance standards required by this franchise or the FCC cannot
be met, then the grantee shall be required to make such extension
only if the grantee can earn a fair return (as measured by the grantee's
weighted average cost of capital) on the incremental investment required
combined with the overall investment base of the cable system within
the boundaries of the franchise area.
d.
Special agreements. Nothing herein shall be construed
to prevent a grantee from serving areas not covered under this Section
upon agreement with developers, property owners or residents.
17.
Customer service reporting requirements. The City
may require upon reasonable request that a grantee periodically prepare
and furnish to City semi-annual reports and any other reasonable information
relevant to the grantee's compliance with the customer service requirements
of this Chapter measured on a quarterly basis.
E.
Operation And Maintenance.
1.
Open books and records. Every grantee shall cooperate
with the City with respect to City's administration of this Chapter
and Code and any applicable franchise granted pursuant to it. Subject
to the privacy provisions of the Cable Act, City shall have the right
to inspect, upon three (3) business days' notice, during normal business
hours, all books, records, maps, plans, financial statements, service
complaint logs, performance test results, and other existing like
materials of a grantee that relate to the operation of the grantee's
cable system and that are reasonably necessary to grantor's enforcement
or administration of this Code or the grantee's franchise. A grantee
shall not be required to maintain any books or records for franchise
compliance purposes longer than three (3) years, except that financial
records necessary to demonstrate compliance with the required cable
franchise fee payments shall be kept for six (6) years. Upon request,
the City will treat designated information disclosed by a grantee
as confidential to the extent permissible under State and Federal
law. All such review of a grantee's books and records shall be performed
by an independent party if the City itself enters into the business
as a competitor.
2.
Communications with regulatory agencies. Copies
of all petitions, applications, communications and reports submitted
by a grantee to the FCC, Securities and Exchange Commission, or any
other Federal or State regulatory commission or agency having jurisdiction
in respect to any matters directly affecting the cable system operations
shall be made available contemporaneously to the City upon request.
Copies of responses from the above regulatory agencies to a grantee
likewise shall be made available promptly to the City upon request.
If the City is specifically named in any such pleading or response,
the City shall automatically be furnished a copy.
3.
Annual reports.
a.
Upon request, a grantee shall make available to City, within ninety
(90) days of the end of each of the applicable grantee's fiscal years
during the term of this franchise, the following:
(1)
A revenue statement certified by a representative of the grantee
showing the gross revenues of the grantee for the preceding fiscal
year;
(2)
A current list of names and addresses of each officer and director
and other management personnel of the grantee;
(3)
A copy of all documents that relate directly to the grantee's
cable system that were filed with any Federal, State or local agencies
during the preceding fiscal year and that were not previously filed
with City;
(4)
A statement of the grantee's current billing practices and charges;
(5)
A copy, if any, of the grantee's current subscriber service
contract; and
(6)
A copy of annual reports to stockholders, if any, for operating
company and parent company.
|
|
All of the above information shall not be required annually
unless there is a change after the first (1st) filing.
|
b.
City and its agents and representatives shall have authority to arrange
for and conduct an audit during normal business hours of the books
and records of grantee that are reasonably necessary for the enforcement
of a franchise. A grantee shall first be given thirty (30) days' notice
of the audit, the description of and purpose for the audit, and a
description, to the best of City's ability, of the books, records
and documents that City wants to review. The costs and expense of
such audit shall be borne by the grantee if the audit reveals a discrepancy
of two percent (2%) or more from the information related to the City.
c.
Any review or audit of a grantee's books and records shall be performed
by an independent party if the City itself enters into the business
as a competitor to provide cable services.
4.
Index of reports.
a.
Every grantee shall compile and maintain an Index of Reports that
shall list all reports, documents and filings that it has prepared
with respect to the cable system over the course of the past two (2)
years as a result of the requirements of the FCC or this Chapter or
Code or franchise, including technical cable system testing and proof
of performance reports and customer service compliance measurements
and shall provide a copy of such Index of Reports to the City annually
and upon written request.
b.
A grantee shall make a copy of any reports or documents listed in
the Index of Reports available to the City upon request.
5.
Additional reports and assistance. Upon request
of the City, a grantee shall add additional reports to the Index which
are reasonably necessary to the City's proper enforcement of this
Chapter, Code or franchise. The City shall require such reports only
through passage of a formal resolution of the City. In addition, upon
request, a grantee shall cooperate and assist the City in interpreting
and understanding any report required under this Chapter, Code or
its franchise, including through the provision of explanatory graphs
and/or charts.
6.
Service contract and subscriber information.
a.
A grantee shall have authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall
be reasonably necessary to enable the grantee to exercise its rights
and perform its obligations under this Chapter and its franchise and
to assure uninterrupted cable service to all of its subscribers; provided
such rules, regulations, terms and conditions shall not be in conflict
with the provisions of this Code, Federal, State and/or local law,
or any applicable rules and regulations.
b.
Upon request, a grantee shall submit to City any subscriber contract
form that it utilizes. If no written contract exists, a grantee shall
file with the City a document completely and concisely stating the
terms of the residential subscriber contract offered, specifically
including the length of the subscriber contract. The length and terms
of any subscriber contract shall be available for public inspection
during normal business hours.
F.
Financial Provisions, Remedies, Procedures And Due Process.
1.
Annual cable franchise fee.
a.
As compensation for grant of a franchise and in consideration of
permission to use the rights-of-way of the City for the construction,
operation, maintenance and reconstruction of a cable system, and to
defray the costs of franchise obligations, every grantee shall pay
to the City on an annual basis throughout the term of its franchise
a sum totaling five percent (5%) of the grantee's gross revenues.
b.
Not a tax or in lieu of any other tax or fee.
(1)
The franchise fee is not a tax, license or fee subject to any
requirement of voter approval, but rather is a rental charge for special
and individualized use of public property.
(2)
The franchisee fee is in addition to all other fees and all
taxes and payments that a franchisee or other person may be required
to pay under any Federal, State or local law, including any applicable
property and amusements taxes, except to the extent that such fees,
taxes or assessments are a franchise fee under 47 U.S.C. Section 542.
c.
Further, every grantee shall market any "bundled" services to fairly
reflect an appropriate and reasonable division of services among the
various services offered. Whether or not a grantee separates services
on a subscriber's bill, it will provide to the City the amounts upon
which it will pay the communications service use fee and any other
applicable taxes or fees based on the provision of communications
service, and the amounts upon which it will pay the cable service
franchise fee. Should a grantee engage in billing practices that,
in the determination of the City, do not fairly reflect an appropriate
split of communications services and cable television services, the
City will notify the grantee in writing of its determination. The
parties will meet and discuss in good faith whether the billing practices
result in an unfair payment of fees to the City. If the parties do
not agree on an appropriate method of determining which charges are
subject to communications service use fees and which are subject to
the cable service franchise fee, the parties may subject the dispute
to arbitration or may resort to other methods of dispute resolution,
including litigation. Taxes or fees which are not paid on the appropriate
division of the bundled bill, when ultimately paid, will be subject
to all interest and penalties provided by the applicable portion of
this Code.
d.
Payments due City under this Section shall be computed quarterly,
for the preceding quarter, as of March thirty-first (31st), June thirtieth
(30th), September thirtieth (30th), and December thirty-first (31st).
Each quarterly payment shall be due and payable no later than forty-five
(45) days after the dates listed in the previous sentence. Each payment
shall be accompanied by a brief report by the grantee showing the
basis for the computation and a "Franchise Fee Worksheet" listing
all of the sources of revenues attributable to the operation of the
grantee's system.
e.
Should any additional monies be due to the City as a result of information
contained in the annual financial report of a grantee or by audit
as permitted by this Chapter, the grantee shall pay such additional
monies to the City within sixty (60) days after receipt of notice
of same from the City.
f.
In the event any franchisee fee or other payment is not made on or
before the date specified herein, the franchisee and any other person
shall pay interest charges computed from such due date at an annual
rate equal to the commercial prime interest rate of the City's primary
depository bank during the period such unpaid amount is owed. In addition,
franchisee shall pay an additional sum of two percent (2%) of the
amount due to defray the City's additional expenses by reason of the
delinquency.
g.
No acceptance of any payment shall be construed as an accord that
the amount paid is in fact the correct amount, nor shall such acceptance
of payment be construed as a release of any claim the City may have
for further sums payable under the provisions of this Chapter, Code
or applicable franchise. All amounts paid shall be subject to audit
and recomputation by the City or its designee, at any time upon reasonable
notice and specification of the documents requested to be reviewed.
City's right to audit, and the grantee's obligations to retain records
related to the franchise fee audit, shall expire six (6) years from
the date on which each franchise fee payment by the grantee is due.
2.
Security fund. Each grantee may be required to maintain
a security fund with the City to ensure compliance with this Chapter,
Code and applicable franchise in an amount and in a manner as set
forth in the grantee's franchise.
3.
Bonds, indemnification and insurance. Each grantee shall maintain bonds and insurance with the City in amounts and in a manner as set forth in the grantee's franchise. Each grantee also shall be required to indemnify the City in a manner as set forth in Section 655.010 and in the grantee's franchise.
4.
Remedies and enforcement procedure.
a.
Whenever the City has reason to believe that a grantee has violated
any provision of this Code or its franchise, including the customer
service and telephone availability requirements, the City shall first
notify the grantee in writing of the violation and demand correction
within a reasonable time, which shall not be less than thirty (30)
days. If the grantee fails to demonstrate to the reasonable satisfaction
of the City that no violation exists, or if the grantee fails to correct
the violation within the time prescribed, or if the grantee is unable
to correct the violation and fails to commence corrective action within
the time prescribed and to diligently remedy such violation thereafter,
the grantee shall then be given written notice of not less than thirty
(30) days of a public hearing to be held before the Governing Body.
Said notice shall indicate with reasonable specificity the violation
alleged to have occurred. This procedure shall apply to all alleged
Code or franchise violations, including those in which grounds for
revocation are considered.
b.
At the public hearing, the Governing Body shall hear and consider
all relevant evidence and thereafter render findings and a decision
based upon the evidence.
c.
In the event the City finds that the grantee has corrected the violation
or promptly commenced correction of such violation after notice thereof
from the City and is diligently proceeding to fully remedy the violation,
or that no violation has occurred, the proceedings shall terminate
and no penalty or other sanction shall be imposed.
d.
In the event the City finds that a violation exists and that the
grantee has not corrected the same in a satisfactory manner or did
not promptly commence and diligently proceed to correct the violation,
the City may impose penalties and/or liquidated damages from the Security
Fund, as follows:
(1)
For system construction schedule violations including, but not
limited to, provisions relating to initial construction schedules
and system upgrade construction schedule, five hundred dollars ($500.00)
per day of non-compliance;
(2)
For all other violations, two hundred fifty dollars ($250.00)
per day per violation.
|
|
The City shall provide the grantee with written notice of its
decision together with a written finding of fact explaining the basis
for such a decision.
|
e.
If the City elects to assess penalties or liquidated damages, then
such election shall constitute the City's exclusive remedy for a period
of sixty (60) days. Thereafter, if the grantee remains in non-compliance,
the City may pursue any other available remedy, including franchise
revocation.
f.
In the event that a franchise is cancelled or terminated by reason
of the default of the grantee, the security fund deposited pursuant
to the franchise shall remain in effect and available to the City
until all pending claims or penalties are resolved or settled, after
which point any remaining amounts in the Security Fund shall revert
to the possession of the grantee.
g.
The rights reserved to the City with respect to the Security Fund
are in addition to all other rights of City, whether reserved by this
Code, applicable franchise, or authorized by law, and no action, proceeding
or exercise of a right with respect to such Security Fund shall affect
any other right City may have.
h.
The foregoing provisions shall not be deemed to preclude the City
from obtaining any other available remedies for repeated violations
of the same general type, whether remedied or not.
5.
Grounds for revocations. In addition to any rights
in this Code or applicable franchise, the City reserves the right
to utilize the above-described enforcement procedure to revoke a franchise,
and all rights and privileges pertaining thereto, in the event that
any of the following occur, and the City and a grantee are not able
to mutually agree upon a cure or alternate remedy:
6.
Right of appeal.
a.
Upon the imposition of a penalty or revocation decision, a grantee
shall have a period of one hundred twenty (120) days subsequent to
the date of the formal adoption of the decision by the Governing Body
within which to file an appeal with a court of competent jurisdiction.
b.
During any such appeal period, the franchise shall remain in full
force and effect.
G.
Foreclosure, Receivership And Abandonment.
1.
Foreclosure. Upon the foreclosure or other judicial
sale of all or a part of the cable system, or upon the termination
of any lease covering all or part of the cable system, a grantee shall
notify the City of such fact and such notification shall be treated
as a notification that a change in control of the grantee has taken
place, and the provisions of this Code governing the consent to transfer
or change in ownership shall apply without regard to how such transfer
or change in ownership occurred.
2.
Receivership. The City shall have the right to cancel
a franchise one hundred twenty (120) days after the appointment of
a receiver or trustee to take over and conduct the business of a grantee,
whether in receivership, reorganization, bankruptcy, or other action
or proceeding, unless such receivership or trusteeship shall have
been vacated prior to the expiration of said one hundred twenty (120)
days, or unless:
a.
Within one hundred twenty (120) days after its election or appointment,
the receiver or trustee has fully complied with all the provisions
of the franchise and remedied all defaults thereunder; and
b.
Such receiver or trustee, within said one hundred twenty (120) days,
has executed an agreement, duly approved by a court having jurisdiction,
whereby such receiver or trustee assumes and agrees to be bound by
each and every provision of this Code and applicable franchise.
H.
Purchase Of System. If a renewal or extension of a franchise
is denied without further right of appeal, or a franchise is lawfully
terminated, with all rights of appeal exhausted, the City may acquire
ownership of the cable system or effect a transfer of ownership of
the cable system to another person, any such acquisition or transfer
shall be in accordance with and to the extent permitted by 47 U.S.C.
Section 547 as follows:
1.
Upon revocation of a franchise, such valuation shall not include
any sum attributable to the value of the franchise itself and plant
and property shall be valued according to its book value at the time
of revocation, or the cable system's initial cost less depreciation
and salvage, whichever of the two (2) is lower.
2.
At the expiration of a franchise, such valuation shall be at fair
market value, exclusive of the value attributed to the franchise itself.
I.
Sale Or Transfer Of Franchise.
1.
A grantee shall not sell, transfer, lease, assign, sublet or dispose
of, in whole or in part, an interest in or control of a franchise
or cable system without the prior consent of the City, which consent
shall not be unreasonably denied or delayed and may be denied only
upon a good faith finding by the City that the proposed transferee
lacks the legal, technical, or financial qualifications to consummate
the transaction and operate the cable system so as to perform its
obligations under the franchise. This Section shall not apply to sales
of property or equipment in the normal course of business. Consent
from the City shall not be required for a transfer in trust, mortgage,
or other instrument of hypothecation, in whole or in part, to secure
an indebtedness, or for a pro forma transfer to a corporation, partnership,
or other entity controlling, controlled by, or under common control
with a grantee.
2.
The following events shall be deemed to be a sale, assignment, or
other transfer of an interest in or control of a franchise or cable
system requiring compliance with this Section:
a.
The sale, assignment, or other transfer of all or a majority of a
grantee's assets in the City;
b.
The sale, assignment, or other transfer of capital stock or partnership,
membership, or other equity interests in a grantee by one (1) or more
of its existing shareholders, partners, members, or other equity owners
so as to create a new controlling interest in grantee;
c.
The issuance of additional capital stock or partnership membership
or other equity interest by a grantee so as to create a new controlling
interest in a grantee; and
d.
A grantee's agreement to transfer management or operation of the
grantee or the system to an unaffiliated entity so as to create a
new controlling interest in the grantee. The term "controlling
interest", as used herein, means majority equity ownership
of a grantee.
3.
A transfer solely for security purposes such as the grant of a mortgage
or security interest, including the pledge or grant of a mortgage
or security interest to lenders of a grantee's assets, including,
but not limited to, the franchise, such as in a transaction commonly
known as an "initial public offering" shall not be deemed to be a
sale, assignment or other transfer of an interest in or control of
a franchise or cable system and thus shall not require compliance
with this Section.
4.
In the case of any sale or transfer of ownership of an interest in
or control of a franchise or cable system, the City shall have one
hundred twenty (120) days to act upon any request for approval of
such sale or transfer that contains or is accompanied by such information
as is required in accordance with FCC regulations and the requirements
of this Code. If the City fails to render a final decision on the
request within one hundred twenty (120) days after receipt by the
City of all required information, such request shall be deemed granted
unless the requesting party and the City agree to an extension of
the one hundred twenty (120) day period.
5.
The City reserves any legal right it has under applicable law to
require a grantee to pay all costs and expenses incurred by the City
in connection with the sale, assignment or transfer of a franchise
including, but not limited to, the City's costs of reviewing the qualifications
of any proposed transferees. Such reimbursement shall not be considered
a franchise fee.
J.
Rights Of Individuals Protected.
1.
Discriminatory practices prohibited. A grantee shall
not deny cable service, deny access, or otherwise discriminate against
subscribers, programmers or general citizens on the basis of income
level, race, color, religion, national origin, sex or age. Every grantee
shall strictly adhere to the equal employment opportunity requirements
of State and Federal law. Every grantee shall comply at all times
with all other applicable Federal, State and local laws and all executive
and administrative orders relating to non-discrimination.
2.
Subscriber privacy. Every grantee shall at all times
comply with the Federal subscriber privacy requirements codified at
47 U.S.C. Section 551.
K.
Miscellaneous Provisions.
1.
Rate regulation. The City reserves the right to
regulate rates for basic cable service and any other services offered
over a cable system to the extent permitted by Federal or State law.
A grantee shall be subject to the rate regulation provisions provided
for herein, and those of the Federal Communications Commission (FCC)
at 47 C.F.R., Part 76.900, Subpart N. The City shall follow the rules
relating to cable rate regulation promulgated by the FCC at 47 C.F.R.,
Part 76.900, Subpart N.
2.
Rights reserved to grantor. Upon either final non-appealable
determination of non-renewal or revocation of a franchise, grantor
shall have discretion to permit a grantee by mutual consent to continue
to operate the cable system for an extended period of time agreed
upon by the parties. Any such operation of the system by a grantee
shall be in accordance with the terms and conditions of this Chapter
or franchise and shall provide the regular subscriber service and
any and all of the services that may be provided at that time.
[Ord. No. 2001-20 §1, 4-10-2001; Ord. No. 2007-56 §3, 12-10-2007; Ord. No. 2019-03, 1-14-2019]
A.
Rights-Of-Way Ordinance. Every "ROW user," as defined in Section 655.010, shall be subject to and comply with the additional or supplementary terms and conditions of the "ROW Ordinance," as may be amended from time to time, which is incorporated herein by reference, and such provisions and the provisions of this Code shall be deemed a condition of any franchise or ROW use agreement. The provisions of this Chapter shall also apply to ROW users to the fullest extent permitted by law and additionally to all construction activities in public utility easements.
B.
ROW Use Agreement, License, Or Franchise Requirements.
1.
ROW Use Agreement, License, Or Franchise Required. Except where
otherwise authorized or required by applicable law, no ROW user may
construct, maintain, own, control, or use facilities in the rights-of-way
without a franchise, license, or ROW use agreement with the City as
provided herein.
a.
Franchise. A franchise shall be obtained in conformance with
all applicable franchise procedures for any ROW user seeking to use
the rights-of-way for purposes of providing or distribution of electricity,
gas, water, steam, lighting, or sewer public utility service in the
City.
b.
ROW Use Agreement. A ROW use agreement shall be required for all other ROW users, except as provided herein or otherwise required by law. Such agreement shall conform to all applicable laws and requirements, including as provided in Section 655.020 for ROW users providing communications services, if applicable, but shall not be subject to procedures applicable to franchises, and the City may, if appropriate, approve form agreements that may be executed by the City Administrator in substantially the form approved.
c.
License For Incidental Uses. Licenses for incidental uses of
the rights-of-way, which include installation of temporary structures
or minor incidental uses in the rights-of-way, such as mailboxes,
driveway aprons, ingress or egress facilities, and similar incidental
uses, that utilize a small area of the rights-of-way and service the
principal structure, may be permitted without a franchise or ROW use
agreement pursuant to a license issued by the Director of Public Works.
The Director may establish such application, requirements, and conditions
applicable to such uses consistent with the purposes of this Code
or as otherwise established by law. Any person granted a license hereunder
shall be subject to the applicable requirements of this Code. Unless
otherwise stated in the license, a license shall be for an indefinite
term and shall be revocable at any time on written notice in the public
interest by the City.
2.
Grant And Nature Of Approval; Terms. The authority granted by
the City in any ROW use agreement, license, or franchise shall be
for non-exclusive use of the rights-of-way. Such grant does not in
any way limit the continuing authority of the City through the proper
exercise of its statutory powers to adopt and enforce ordinances necessary
to provide for the health, safety, and welfare of the public. The
City specifically reserves the right to grant, at any time, such additional
agreements or other rights to use the rights-of-way for any purpose
and to any other person, including itself, as it deems appropriate,
subject to all applicable laws. The granting of any ROW use agreement,
license, or franchise shall not be deemed to create any property interest
of any kind in favor of the ROW user, nor shall it create any relationship
of agency, partnership, joint venture, or employment between the parties.
All franchises and ROW use agreements shall be approved by ordinance
of the City Council on a non-discriminatory basis, provided that the
applicant is in compliance with all applicable requirements. All franchises,
licenses, and ROW use agreements shall be deemed to incorporate the
terms of this Code and other applicable laws of the City, except as
may be expressly stated in such ROW use agreements, licenses, and
franchises.
3.
No Warranty. The City makes no express or implied representation
or warranty regarding its rights to authorize the installation or
construction of facilities on any particular segment of rights-of-way
and shall not be liable for any damage therefrom. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the ROW user. The ROW user shall be solely
liable for any damages to facilities or other property due to excavation,
facilities maintenance, or other ROW work performed prior to obtaining
the location of all facilities within the ROW user's work area. The
ROW user shall not make or attempt to make repairs, relocation, or
replacement of damaged or disturbed facilities without the approval
of the owner of the facilities.
4.
Use Of City Or Third-Party Facilities. No ROW use agreement,
franchise, or license shall be deemed to grant the right to use facilities
owned or controlled by the City or a third party, and no such use
shall occur without the express written consent of such party (on
file with the City and subject to other applicable requirements),
nor shall any franchise, ROW use agreement, or license excuse such
person from first obtaining a pole attachment agreement or other express
consent for such right or use before locating on the facilities controlled
or owned by the City or a third party.
5.
Lease Required For Public Lands. Unless otherwise provided,
use or installation of any facilities in, on, or over non-rights-of-way
public property of the City shall be permitted only if a lease agreement
or other separate written approval has been negotiated and approved
by the City with such reasonable terms as the City may require.
6.
Condition Precedent To Permit. Unless otherwise required by
applicable law, no permit may be issued unless or until such person
has a valid franchise, license, or rights-of-way use agreement with
the City.
7.
Transferability. Except as provided in this Code or as otherwise
required by law, no franchise, ROW use agreement, license, or permit
may be transferred or assigned without the written application to
and consent of the City based on the requirements and policies of
this Code. The City shall not unreasonably withhold its consent as
provided herein, but any costs incurred shall be paid by the ROW user
to the extent not prohibited by applicable law.
8.
Forfeiture Of Agreement And Privilege. In case of failure on
the part of the ROW user, including its successors and assigns, to
comply with any of the provisions of this Code or a ROW use agreement
or franchise or if the ROW user, its successors or assigns should
do or cause to be done any act or thing prohibited by or in violation
of this Code or the terms of the authorization of such use, or otherwise
loses authority to provide its service in the City, the ROW user,
its successors and assigns shall forfeit all rights and privileges
permitted by this Code and any ROW use agreement or franchise, and
all rights hereunder shall cease, terminate, and become null and void,
provided that said forfeiture shall not take effect until the City
shall carry out the following proceedings: Before the City declares
the forfeiture or revocation of a rights-of-way use agreement or it
shall first serve a written notice upon the person setting forth in
detail the neglect or failure complained of, and the person shall
have thirty (30) days thereafter, or such other reasonable period
established by the City Council, in which to cure the default by complying
with the conditions of the ROW use agreement or franchise and fully
remedying any default or violation. If at the end of such period the
City determines that the conditions have not been complied with and
that the person did not reasonably and in the public interest require
more than thirty (30) days to cure the default, the City may take
action by an affirmative vote of the City Council present at the meeting
and voting to terminate the ROW use agreement or franchise setting
out the grounds upon which such agreement is to be forfeited or revoked.
Nothing herein shall prevent the City from invoking any other remedy
or from declaring immediate forfeiture where the default is incapable
of being cured by the ROW user, including where such defaults or violations
have repeatedly occurred.
C.
Application For Franchise Or Agreement Required.
1.
Application Required. An application for a franchise or ROW
use agreement, on City forms, shall be presented to the Director in
writing and shall include all such information as is required by this
Section. The ROW user shall be responsible for accurately maintaining
the information in the application during the term of any franchise
or ROW use agreement and shall be responsible for all costs incurred
by the City due to the failure to provide or maintain as accurate
any application information required herein.
2.
Application Deposit Fee. A five hundred dollars ($500.00) application
deposit fee for review, documentation and approval of such ROW use
agreement or franchise is required, unless otherwise established by
the City, to recover any actual costs anticipated and incurred by
the City in reviewing, documenting, or negotiating such ROW use agreement
or franchise, provided that no costs shall be included if such inclusion
is prohibited by applicable law as to that person. If the actual costs
are thereafter determined to be less than the application deposit
fee, such amount shall be returned to the person, after written request
therefrom; if the actual costs exceed the application deposit fee,
such person shall pay such additional amount prior to issuance of
any final City approval after written notice from the City.
3.
Application Form. An applicant shall submit a completed application
for a franchise or rights-of-way use agreement on such form provided
by the City, which shall include information necessary to determine
compliance with this Code, including, but not limited to:
a.
Identity and legal status of the applicant.
b.
Name, address, telephone number, and e-mail address of each
officer, agent, or employee responsible for the accuracy of the application.
Each officer, agent, or employee shall be familiar with the local
facilities of the applicant, shall be the person(s) to whom notices
shall be sent, and shall be responsible for facilitating all necessary
communications, including, but not limited to, certification to the
City of any material changes to the information provided in such completed
application during the term of any franchise or ROW use agreement.
c.
Name, address, telephone number, fax number, and e-mail address
of the local representative of the applicant who shall be available
at all times to act on behalf of the applicant in the event of an
emergency.
d.
Proof of any necessary permit, license, certification, grant,
registration, franchise agreement, or any other authorization required
by any appropriate governmental entity, including, but not limited
to, the FCC or the PSC.
e.
Description of the applicant's intended use of the rights-of-way,
including such information as to proposed services so as to determine
the applicable Federal, State, and local regulatory provisions as
may apply to such user.
f.
A list of authorized agents, contractors, and subcontractors
eligible to obtain permits on behalf of the applicant. An application
may be updated to add such person at the time of permit application
if the updated information on the application is submitted by an authorized
representative of the applicant.
g.
Information sufficient to determine the amount of net assets
of the applicant.
h.
Information sufficient to determine whether the applicant is
subject under applicable law to franchising, service regulation, payment
of compensation for the use of the rights-of-way, taxation, or other
requirements of the City.
i.
Any request including one (1) or more Antennas shall also include
all requirements for installation of Antennas and Wireless Facilities
set forth in the Uniform Wireless Communications Infrastructure Deployment
Act (§§ 67.5090 et seq. RSMo.), City's Zoning Code,
or other applicable law.
j.
Such other information as may be reasonably required by the
City to determine requirements and compliance with applicable regulations.
4.
Standard For Approval Or Renewal Of ROW Use Agreements And Franchises.
In reviewing an application for a new or renewal ROW use agreement
or franchise, the City may consider prior conduct of the person in
performance of its obligations or compliance with the City's ordinances
in the past, or the existence of any outstanding violations or deficiencies.
The City may deny or condition any ROW use agreement or franchise
where the proposed use would interfere with the public use of the
rights-of-way or otherwise conflict with the legitimate public interests
of the City, to fulfill the requirements and objectives of this Code
or as otherwise provided by law. Applications for ROW use agreements
or franchises may be approved, denied, or approved with conditions
consistent with requirements of applicable law or other applicable
requirements as may be necessary to fulfill the requirements and objectives
of this Code.
5.
Approval Process. After submission by the applicant of a duly
executed and completed application, application deposit fee, and executed
franchise or rights-of-way use agreement as may be provided by the
Director or as modified by the Director in review of the specific
circumstances of the application, all in conformity with the requirements
of this Code and all applicable laws, the Director shall submit such
agreement to the City Council for approval. Upon determining compliance
with this Code, the City Council shall authorize execution of the
franchise or rights-of-way use agreement (or a modified agreement
otherwise acceptable to the City consistent with the purposes of this
Code) and such executed franchise or ROW use agreement shall constitute
consent to use the rights-of-way; provided that nothing herein shall
preclude the rejection or modification of any executed franchise or
ROW use agreement submitted to the City to the extent such applicable
law does not prohibit such rejection or modification, including where
necessary to reasonably and in a uniform or non-discriminatory manner
reflect the distinct engineering, construction, operation, maintenance,
public work, or safety requirements applicable to the person or use.
D.
Use By Third Parties And Reseller Service Provider Requirements.
1.
ROW User Authority; Obligations.
a.
A ROW user is authorized, subject to other applicable requirements,
to sell or transfer use of excess capacity to reseller service providers
or other entities, provided that such entity either:
b.
In the event of such sale or transfer to a reseller service
provider, the ROW user shall notify the City of the same prior to
such action so that the City can review compliance regarding doing
business in the City. This notice shall not relieve the reseller service
provider from its own obligation to register, pay taxes, and obtain
any necessary authorization from the City.
2.
Registration Of Reseller Service Providers And Exempt Entities.
a.
Reseller Service Provider Registration.
(1)
Prior to providing service (including sale or transfer
of product or service) within the City or acquiring or using excess
capacity through facilities in the City, reseller service providers
shall register with the City the intent to do so and shall include:
(a)
Identity of the reseller service provider and certification
of the applicable regulatory approval necessary to undertake such
service;
(b)
The name of the ROW user(s) owning the facilities
within the City through which the service shall be transmitted;
(c)
Name, address, telephone number, and e-mail address
of an officer, agent, or employee responsible for the accuracy of
the registration, and contact information for a person to speak on
behalf of the reseller service provider, if different; and
(d)
Such other information as requested by the Director.
(2)
It shall be unlawful for any reseller service provider
to have its own facilities in the rights-of-way, have the right to
physically access the facilities in the rights-of-way, or to transmit
service for commercial purposes through any facility owned by a person
without a valid franchise, rights-of-way use agreement, or other City
authorization for such facilities. It shall be the duty of a reseller
service provider to report any changes to its registration information
within thirty (30) days of such change.
b.
Exempt Entity Registration. Prior to providing service within the City, transmitting communications through facilities in the City, or constructing in the rights-of-way, entities not required to obtain a franchise, license, or rights-of-way use agreement due to superseding Federal or State law, shall nevertheless be required to register with the City by providing the City the information required by the rights-of-way application in Section 655.040(B)(3). It shall be the duty of such exempt entity to report any changes to such registration information within thirty (30) days of such change.
3.
Reseller Service Provider Obligations. Any reseller service
provider that buys or leases excess capacity or other services for
resale from a ROW user shall be subject to the terms and conditions
of this Code, including the requirement to first register with the
City and obtain any necessary permit, license, certification, grant,
registration, franchise agreement, or any other authorization required
by any appropriate governmental entity, including, but not limited
to, the City, PSC or the FCC. If a person through such lease or purchase
owns facilities in the rights-of-way or has the right to physically
access or maintain any facilities in the rights-of-way, then such
person no longer meets the definition of a reseller service provider
and is required to first obtain a franchise, license, or rights-of-way
use agreement as required herein and where not prohibited by applicable
law.
E.
Permit Required; Requirements — Denial — Revocation.
1.
Excavation Permit Required. Except as otherwise provided herein, no ROW user or other person shall perform excavation work in the ROW without an excavation permit as provided in Chapter 525. Any person desiring to excavate in the ROW shall first apply for an excavation permit as outlined in Chapter 525, on an application form provided by the City, and submit the application fee and pay all applicable fees to obtain an excavation permit, in addition to any other building permit, license, easement, or other authorization required by law, unless such excavation must be performed on an emergency basis as provided in this Code. The Director shall, within thirty-one (31) days of receipt of such application, either approve the application or inform the ROW user of the reasons for disapproval. An excavation permit should be obtained for each project unless otherwise provided for in Chapter 525. A separate special permit or lease shall be required for excavation in or use of any real property interest of the City that is not ROW. All excavation permits shall expire after sixty (60) days from the date of issuance, unless otherwise specified in the excavation permit. An applicant whose excavation permit application has been withdrawn, abandoned, or denied for failure to comply with this Code shall not be refunded the application fee.
2.
Local Representative Designation. Each ROW user shall designate
a local person familiar with the facilities that shall act as a local
agent for the ROW user and shall be responsible for satisfying information
requirements of this Code. The ROW user shall present to the City
the agent's name, address, telephone number, and e-mail address. The
agent shall be the person to whom relocation notices and other such
notices shall be sent, and with whom rests the responsibility to facilitate
all necessary communications. The ROW user shall be responsible for
all costs incurred by the City due to the failure to provide such
information to the City.
3.
Facilities Maintenance Permit; Exemptions. No person shall perform
facilities maintenance in the rights-of-way without first obtaining
a facilities maintenance permit from the Director, except where such
facilities maintenance is expressly authorized by an existing valid
excavation permit for the applicable maintenance location or is exempt
herein. In addition to the conditions set forth below, conditions
of a facilities maintenance permit shall be as established in such
maintenance permit and shall include requirements of notice to the
City whenever traffic lanes are to be obstructed, manhole covers or
safety barriers removed or altered, temporary or other barricades
installed, and other events set forth in the facilities maintenance
permit. All facilities maintenance permits shall expire after sixty
(60) days from the date of issuance, unless otherwise specified in
such maintenance permit. A facilities maintenance permit shall not
be required for:
a.
ROW users performing routine maintenance which does not require
excavation, does not disrupt traffic or pedestrians, and requires
no more than four (4) hours to complete, provided that at minimum
two (2) hours' notice is provided to the City during normal business
hours;
c.
Contractors working on the construction or reconstruction of
public improvements and which are operating pursuant to a contract
with the City for such construction; or
d.
Routine maintenance on previously approved "small wireless facilities,"
as defined by Section 67.5111, RSMo., replacement of small wireless
facilities that are the same or smaller in size, weight, and height,
or installation, placement, maintenance, operation, or replacement
of "micro wireless facilities," as defined by Section 67.5111, RSMo.,
that are strung on cables between utility poles in compliance with
applicable safety and building codes, when such work will not involve
excavation, affect traffic patterns, obstruct traffic in the ROW,
or materially impede use of a sidewalk, and provided the ROW user
submits as-builts of the small wireless facilities or micro wireless
facilities so that the City may maintain an accurate inventory of
facilities installed in the ROW.
4.
Bulk Or Individual Permits. The Director may issue individual
permits for specific proposed excavations or facilities maintenance
or may issue bulk permits covering multiple projects, types of actions,
or locations during a period of up to one (1) year that may be thereafter
performed during that permit year. Where a bulk permit is proposed,
the ROW user shall provide sufficient information regarding the types
of actions and locations to be approved so as to allow the Director
to condition and ensure compliance with safety and other regulations
herein.
5.
Emergencies. In case of an emergency requiring immediate attention
to remedy defects, and in order to prevent loss or damage to persons
or property, it shall be sufficient that the person making such excavation
or performing such facilities maintenance obtain the necessary permit
as soon as possible and may proceed without a permit when such permit
cannot reasonably be obtained before starting such emergency excavation
or facilities maintenance. Notice to the City of the emergency shall
be provided at the earliest possible time, and the appropriate permit
shall be obtained as soon as reasonably possible, and not later than
five (5) business days, or as otherwise directed by the City. In the
event the City becomes aware of an emergency requiring facilities
work, the City shall attempt to contact a representative of each ROW
user affected, or potentially affected, by the emergency work. If
no response is received by a particular ROW user to whom contact is
attempted, the Director may take whatever action he/she deems necessary
to respond to the emergency, the cost of which shall be borne by the
person whose action or inaction occasioned the emergency or by the
ROW user if the emergency was occasioned by an act of nature.
6.
Law Compliance Incorporation. Every permit issued hereunder
shall incorporate the requirements and terms of this Code, and all
applicable ordinances, to the extent permitted by law. The ROW user
shall perform such work in accordance with the issued permit and applicable
provisions of this Code and any subsequent ordinances or regulations
that may be adopted by the City regarding excavation or maintenance
work. In addition, all ROW users shall be subject to all technical
specifications, design criteria, policies, resolutions, and ordinances
now or hereafter adopted or promulgated by the City in the reasonable
exercise of its police power relating to permits and fees, sidewalk
and pavement cuts, facility location, construction coordination, surface
restoration, and other requirements on the use of the rights-of-way.
A ROW user shall perform all excavations or facilities maintenance
in full compliance with all applicable engineering codes adopted or
approved by the City, and in accordance with applicable Statutes of
the State of Missouri, and the rules and regulations of the PSC, FCC,
and any other local, State, or Federal agency having jurisdiction
over the parties. The ROW user shall comply with the excavation requirements
of Missouri One Call established by § 319.010 et seq., RSMo.,
as amended.
7.
Stop-Work Orders. Any ROW user found to be working without a
required permit, failing to provide for required safety and traffic
control measures, or otherwise violating any requirements herein,
may be directed to stop work until the necessary permit is obtained,
the appropriate measures are implemented, or violations are discontinued
or remedied in accordance with this Code. Except in cases of an emergency
or with approval of the Director, no rights-of-way excavation or work
may be done in violation of a stop-work order issued by the Director.
8.
Subsurface Utility Engineering Survey. Unless determined by
the Director as unnecessary, prior to the commencement of any construction
or alteration of its facilities located in the rights-of-way, the
ROW user shall furnish to the Director a subsurface utility engineering
study on the proposed route of construction, expansion, or alteration,
which shall consist of the following tasks:
a.
All available plans, plats, and other location data indicating
the existence and approximate location of all facilities along the
proposed construction route;
b.
Completion of a visual survey and written record of the location
and dimensions of any aboveground features of any underground facilities
along the proposed construction route, including, but not limited
to, manholes, pedestals, valve boxes, utility boxes, posts, and visible
street cut repairs;
d.
Provide all such data collected into a CADD file (or other format
as may be identified by the City Engineer and in a format maintained
by the ROW user) compatible with that used by the City Engineer and
deliver a copy to the City Engineer.
9.
Permit-Specific Conditions. To the extent permitted by applicable
law, the Director may also impose reasonable conditions upon the issuance
of a permit and the performance of excavation and ROW work in order
to protect the public health, safety, and welfare, to ensure the structural
integrity of the rights-of-way, to protect the property and safety
of other users of the rights-of-way, and to minimize the disruption
and inconvenience to the traveling public. Such reasonable conditions
may include, but are not limited to:
a.
The amount of excavation or facilities maintenance which may
occur at one (1) time and the amount of rights-of-way which may be
obstructed during construction;
b.
The number or size of conduits or other facilities that may
be installed by each ROW user based on the reasonable needs to ensure
that no one (1) ROW user may unreasonably consume a disproportionate
amount of the available rights-of-way to deter competition or deprive
the public or others of the reasonable use of the rights-of-way;
c.
Posting of an additional or larger performance and maintenance bond for additional facilities, except as otherwise provided in Section 525.280(B) hereof, when the established amount is reasonably determined to be insufficient;
d.
The design, location, and nature of all facilities, based on
a non-discriminatory basis in ensuring the safe, efficient, and appropriate
use of the ROW consistent with this Code and applicable law; and
e.
Other reasonable conditions regarding the timing, safety precautions,
space, or specific implementation of the specific work proposed.
10.
Joint Permit Applications. Applicants may apply jointly for permits in the rights-of-way at the same time and place. All joint applicants must jointly execute all required documents and shall be jointly and severally liable for all duties and obligations within this Code. Persons who apply jointly may share in the payment of the application deposit fee as described in Section 655.040(C)(2). Such persons must agree among themselves as to the portion each shall pay.
11.
Permit Denial. The Director may deny an application for a permit
if:
a.
To the extent permitted by law, the person does not have a current
franchise, license, or rights-of-way use agreement, or other authorization
with the City.
b.
The ROW user, or any persons acting on the behalf of the ROW
user, fails to provide all the necessary information requested by
the City for managing the rights-of-way.
c.
The ROW user, or any persons acting on the behalf of the ROW
user, including contractors or subcontractors, has a history of non-compliance
or permitting non-compliance within the City. For purposes of this
Section, "history of non-compliance or permitting non-compliance within
the City" shall include where the ROW user, or any persons acting
on the behalf of the ROW user, including contractors or subcontractors,
has failed to return the rights-of-way to its previous condition under
a previous permit, has failed to comply with the terms of this Code,
or has violated terms, or is in violation of terms of the ROW users'
franchise, rights-of-way use agreement, license, or other authorization
with the City.
d.
The City has provided the ROW user with a reasonable, competitively
neutral, and non-discriminatory justification for requiring an alternative
method for performing the excavation or facilities maintenance identified
in the permit application, or a reasonable alternative route that
will not result in additional installation expense of more than ten
percent (10%) to the ROW user or a declination of service quality.
e.
Any other violations or non-compliance caused by or through
the ROW user of any applicable City, State, or Federal law or regulation,
except where such violation is prohibited by applicable law for being
a basis for denial.
f.
The City determines that the denial is necessary to protect
the public health and safety, provided that the authority of the City
does not extend to those items under the jurisdiction of the PSC,
such denial shall not interfere with a ROW user's right of eminent
domain of private property, and such denials shall only be imposed
on a competitively neutral and non-discriminatory basis. In determining
whether denial of a permit application is necessary to protect the
public health and safety, the Director may, where not prohibited by
applicable law, consider one (1) or more of the following factors:
(1)
The extent to which the rights-of-way space where
the permit is sought is available, including the consideration of
competing demands for the particular space in the rights-of-way, or
other general conditions of the rights-of-way;
(2)
The applicability of any ordinance, code provision,
or other regulations that affect the location of facilities in the
rights-of-way;
(3)
The degree and nature of disruption to surrounding
communities and businesses that will result from the use of that part
of the rights-of-way, including whether the issuance of a permit for
the particular dates and/or times requested would cause a conflict
or interfere with an exhibition, celebration, festival, or any other
event;
(4)
The area is environmentally sensitive as defined
by State Statute or Federal law or is an historic district designated
by City ordinance; and
(5)
The failure to comply with applicable City ordinances,
or any other violation, unsafe conditions, or damage or threatened
harm to the rights-of-way or public, except where such circumstance
would otherwise not constitute a lawful basis for denial of a permit.
12.
Permit Revocation. The Director may, after reasonable notice
and an opportunity to cure, revoke a permit without fee refund, but
only in the event of a substantial breach of the terms and material
conditions of the permit. A substantial breach by a ROW user includes
but is not limited to:
a.
A material violation of a provision of the permit;
b.
An evasion or attempt to evade any material provision of the
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its citizens;
c.
A material misrepresentation of fact in the permit application;
d.
A failure to complete work by the date specified in the permit,
unless a permit extension is obtained, or unless the failure to complete
the work is due to reasons beyond the ROW user's control;
e.
A failure to correct, within the time specified by the City,
work that does not conform to applicable national safety codes, industry
construction standards, or local safety codes, upon inspection and
notification by the City of the faulty condition; or
f.
Such other lawful reasons.
F.
Mapping Of Facilities. Each licensee or franchisee shall maintain
and file with the City updated maps, in such form as may be required
by the Director and in a form maintained by the ROW user, providing
the location and sufficient detail of all facilities existing in the
rights-of-way on the effective date of any ROW use agreement or franchise,
and those reasonably anticipated to be installed in each six-month
period subsequent to the initial and updated filing, and such other
related information as required by the City Engineer. Such maps shall
be updated and kept current with the City.
G.
No Interference.
1.
No Interference Generally. All ROW users shall construct and
maintain its facilities so as not to interfere with other users of
the rights-of-way. Except as may otherwise be provided or as determined
by the Director, the ROW user shall, prior to commencement of work,
execute a City-approved resident-notification plan to notify residents
affected by the proposed work. All construction and maintenance by
the ROW user or its subcontractors shall be performed in accordance
with industry standards. The ROW user shall, in the performance of
any excavation, facilities maintenance, or other ROW work, limit such
work to that necessary for efficient operation and so as not to interfere
with other users of the rights-of-way. The ROW user shall not interfere
with or alter the facilities of the City or other ROW user without
their consent and shall be solely responsible for such.
2.
Priority Of Uses. A ROW user's use shall be in all situations
subordinate and subject to public municipal use. To the extent not
prohibited by applicable law, in situations where multiple users are
within the same location, first the municipal use shall have priority
followed by persons with a valid and current rights-of-way use agreement,
franchise, or other authorization with the City, followed by all others.
3.
Sight Triangle Maintained. ROW users shall comply with the requirements
of sight triangles, and nothing shall be erected, placed, planted,
or allowed to grow in such a manner as to materially impede vision
within the triangular area formed by the rights-of-way lines and a
line connecting them at points thirty (30) feet from their point of
intersection or at equivalent points on a private street.
H.
Maintenance Of Facilities. Each ROW user shall maintain its facilities
in good and safe condition and in a manner that complies with all
applicable Federal, State, and local requirements.
I.
Advertising, Signs, Or Extraneous Markings. ROW users shall not place
or cause to be placed any sort of signs, advertisements, or other
extraneous markings, whether relating to the ROW user or any other
person on the rights-of-way, except such necessary minimal markings
as approved by the City as are reasonably necessary to identify the
facilities for service, repair, maintenance, or emergency purposes,
or as may be otherwise required to be affixed by applicable law or
regulation.
J.
Tree Protection. Unless otherwise approved in writing by the City,
a ROW user shall neither remove, cut, nor damage any trees or other
landscaping, or their roots, in and along the ROW and other public
places of the City. Tree trimming and pruning may be permitted to
occur only after prior written notice to the City of the extent of
trimming and pruning to be performed and the prior written approval
thereof by the City. The type and extent of trimming and pruning shall
be in accordance with the requirements of the City. In the event the
person severely disturbs or damages any tree or other landscaping
in the rights-of-way to the detriment of its health and safety, the
person shall be required to remove and replace such of like size at
the person's cost. The location, size, and species of any replacement
landscaping shall be approved by the Director, unless the Director
approves an equivalent monetary payment in lieu of replanting. In
reviewing any permit application, the City may require the applicant
to directionally bore around or otherwise avoid disturbance to any
tree or landscaping, existing facility, or other protected area in
the rights-of-way.
K.
Responsible For Subcontractors. If excavation or facilities maintenance
is being done for the ROW user by another person, a subcontractor
or otherwise, the ROW user shall be responsible for ensuring that
the excavation or facilities maintenance of said person is performed
consistent with its permit and applicable law (including that the
contractor shall be properly licensed under the State of Missouri
and local ordinances) and shall be responsible for promptly correcting
acts or omissions by said persons.
L.
Exclusion Of Certain Locations/Facilities. To the extent permitted
by applicable law, the Director may designate certain locations or
facilities in the rights-of-way to be excluded from use by the ROW
user, including but not limited to, ornamental or similar specially
designed streetlights or other facilities or locations which in the
reasonable judgment of the Director cannot safely bear the weight
or wind loading thereof, or any other facility or location that in
the reasonable judgment of the Director would be rendered unsafe or
unstable by the installation. The Director may further exclude certain
other facilities that have been designated or planned for other use
or are not otherwise available for use by the ROW user due to engineering,
technological, proprietary, legal, or other limitations or restrictions
as may be reasonably determined by the City. In the event such exclusions
conflict with the reasonable requirements of the ROW user, the City
will cooperate in good faith with the ROW user to attempt to find
suitable alternatives, if available, provided that the City shall
not be required to incur financial cost nor require the City to acquire
new locations for the ROW user.
M.
Location, Type, And Design Of Facilities Subject To Approval.
1.
Review Required. The design, location, and nature of all facilities
shall be subject to the review and approval of the Director. Such
review shall be on a non-discriminatory basis in application of City
policy, and approvals shall not be unreasonably withheld. City height
limitations, applicable zoning restrictions, and general City policies
with regard to all users of the rights-of-way shall be applicable
to all facilities. The Director may establish regulations or policies
as may be deemed necessary or appropriate to effect this provision.
2.
Underground And Co-Location Of Facilities Required; Exceptions. Except as provided herein or where prohibited by applicable law, no person may erect, construct, or install facilities above the surface of the rights-of-way without the written permission of the City based on good cause established by the applicant and found by the City. In addition, all new fiber optics, coaxial, and similar cable facilities shall be located within existing conduit, trenches, or other facilities to minimize unnecessary use of rights-of-way space, reduce potential existing or future interference and obstructions, and to reduce the cost to the public or others therefrom, and to maximize the public's ability to use and license appropriate private or public uses of the rights-of-way in the public interest except where preempted by law or where good cause is established and written permission granted by the City. Such permission may be granted by the City Council when other similar facilities exist aboveground and conditions are such that underground construction is impossible, impractical or unfeasible, as determined by the City, and when in the City's judgment the aboveground construction has minimal aesthetic impact on the area where the construction is proposed. Where reasonable and appropriate and where adequate rights-of-way exist, the ROW user shall place aboveground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City, provided that such placement is practical, efficient, and economically feasible. New "utility poles," as defined by Section 400.875 of the Zoning Code, and related ground-mounted equipment shall be permitted to be installed aboveground; provided, however, that to ensure unobstructed pedestrian use and City maintenance of the ROW and minimize visual obstructions for vehicular traffic, a new utility pole and any ground-mounted equipment related to that utility pole or the equipment thereon shall not be installed within one hundred fifty (150) feet of another utility pole or other ground-mounted equipment on the same side of the ROW. A replacement utility pole that is installed in lieu of an existing utility pole and is installed within ten (10) feet of the existing utility pole, shall not be considered a new utility pole subject to the spacing requirements herein. Such spacing regulations as applied to that specific site may be altered by the City Council upon good cause shown by the applicant.
N.
Wireless Antennas And Facilities. Pursuant to City authority, including
Section 67.1830(6)(f), RSMo., and the Uniform Small Wireless Facility
Deployment Act (§ 67.5110 et seq., RSMo.), and to properly
manage the limited space in the City's rights-of-way, minimize obstructions
and interference with the use of the rights-of-way by the public and
to ensure public safety, while also seeking to facilitate delivery
of broadband technologies to City residents and businesses, wireless
facilities shall be permitted in the rights-of-way in compliance with
the requirements applicable to other facilities and users in the rights-of-way,
and the additional requirements set forth in this Section for wireless
antennas and facilities.
1.
General Conditions. Any wireless facility in the ROW shall be
subject to conditions relating to the location (including prohibited
or limited locations), design, height, appearance, safety, radio-frequency,
and other interference issues as may be lawfully imposed by the City
where necessary or appropriate to protect the public, and to conform
to policies and interests of the public as may be set forth in special
district plans, historic areas, or other policies as may be reasonably
adopted by the Director to address changing infrastructure, technology,
and uses of the rights-of-way and/or City facilities. A wireless facility
shall not be located or installed in a manner that results in interference
with or impairs the operation of existing utility facilities or City
or third-party attachments. Wireless antennas or facilities shall
further comply with:
a.
All applicable requirements for installation of any facilities
in the ROW as set forth in this Code, including an excavation or facilities
permit;
b.
The requirements of this Section; and
c.
Requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (§ 67.5090 et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (§ 67.5110 et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Article XV of Chapter 400.
2.
Specific Conditions.
a.
Small Wireless Facilities. Any small wireless facility meeting the requirements for "small wireless facility" as defined by Section 400.860 and as provided in Section 400.875 of the Zoning Code shall be authorized to be located in the rights-of-way with approval of the Director subject to the following additional requirements:
(1)
If proposing to install a new utility pole, compliance with the spacing requirements in Section 655.040(M)(2);
(2)
Compliance with § 67.5113.3(9), RSMo.
to the satisfaction of the City;
(3)
For co-locations on City utility poles, all make-ready
estimates for the utility pole, including replacement costs where
necessary for the safety and reliability of the utility pole, as determined
by the City;
(4)
Attestation that the proposed small wireless facility meets the volumetric requirements to meet the definition of a small wireless facility in Section 400.860 of the Zoning Code; and
(5)
Any other requirements which may be applicable
to the proposed small wireless facility pursuant to the Uniform Small
Wireless Facility Deployment Act (§§ 67.5110 et seq.
RSMo.).
b.
Fast-Track Small Wireless Co-Location. Any wireless facility meeting the requirements of a "fast-track small wireless facility" as defined by Section 400.860, and as provided in Section 400.880 of the Zoning Code, may be authorized to be located in the rights-of-way with approval of the Director subject to the following additional requirements:
(1)
Attestation that the proposed facilities meet the volumetric requirements to meet the definition of "fast-track" in Section 400.860 of the Zoning Code;
(2)
Only one (1) fast-track small wireless facility
shall be permitted per structure or utility pole in the ROW;
(3)
No ground equipment shall be authorized;
(4)
If the proposed structure the applicant proposes
to locate its fast-track small wireless facility is not structurally
sound, but the Director finds such to be a desired location, the Director
can require the applicant to install a new substantially similar structure
at its cost; and
(5)
Compliance with the spacing requirements in Section 655.040(M)(2) if granted a waiver under the fast-track zoning procedure to install a new structure.
c.
All Other Wireless In ROW. Any wireless facility located on a utility pole or existing structure but not meeting the requirements of Subsection (N)(2)(a), small wireless facilities, or Subsection (N)(2)(b), Fast-Track Small Wireless Co-Location, above, may be approved, subject to conditions as may be imposed consistent with the purposes of this Section, only upon approval by the Council upon a determination by the Council that such wireless facility is:
(1)
In the public interest to provide a needed service
to persons within the City;
(2)
Cannot feasibly meet all of the requirements of
a small wireless facility, fast-track or otherwise, but varies from
such requirements to the minimum extent necessary;
(3)
Does not negatively impact appearance or property
values in light of the location, design, and circumstances to be approved;
(4)
Does not create any reasonable safety risk; and
(5)
Complies with all zoning, ROW, and other applicable
requirements.
d.
Wireless Facility Compensation. If the small wireless facility
or fast-track is to be located on a City-owned structure or utility
pole, an annual payment of one hundred fifty dollars ($150.00) per
attachment shall be required. Nothing herein shall limit, waive, or
otherwise affect the applicability of linear foot fees as may be required
by a grandfathered political subdivision pursuant to § 67.1846,
RSMo.
e.
Application Requirements. Any application including one (1)
or more wireless Antennas or facilities shall include all requirements
for:
(1)
Installation of any facilities in the right-of-way
as set forth in this Section;
(2)
The requirements of this Subsection, and also include;
(3)
Requirements for installation of wireless antennas
and facilities set forth in the Uniform Wireless Communications Infrastructure
Deployment Act (§ 67.5090 et seq., RSMo.), City's Zoning
Code, or other applicable law, including written proof of consent
of landowner and of structure owner.
O.
Notification, Joint Installation, And Co-Location Requirements. ROW
users shall, prior to any excavation or installation within the rights-of-way,
provide sufficient notification and joint installation opportunity
on a shared-cost basis to potential users of the rights-of-way as
may be provided for by separate City policy. Such notification and
adopted policies shall be designed to maximize co-location of ROW
users, to minimize the disturbance to the rights-of-way, and maximize
its usable capacity. ROW users shall identify by mapping, as required
by the Director, the location and specifications of all conduit available
or dedicated for co-location, to the extent not prohibited by applicable
law. Any person unreasonably failing to respond to co-location opportunities
or otherwise comply with this provision or policies adopted hereunder
shall, unless good cause is found by the City, be precluded from use
of the rights-of-way for a period of thirty (30) months at such locations
that would reasonably have been accommodated by the co-location opportunity
that was declined.
P.
Removal Of Facilities. To the extent permitted by applicable law,
upon expiration of an agreement, whether by lapse of time, by agreement
between the ROW user and the City, or by forfeiture thereof, the ROW
user shall remove, at its sole cost, from public property any and
all of its facilities that are the subject of a ROW use agreement,
franchise, or license within a reasonable time after such expiration,
not to exceed ninety (90) days, and it shall be the duty of the ROW
user immediately upon such removal to restore the rights-of-way from
which the facilities are removed to as good condition as the same
were before the removal was effected and as required by the City.
The ROW user shall further, unless otherwise consented to by the City,
remove all facilities that have been abandoned. Notwithstanding the
foregoing, upon request of the ROW user, the City may allow underground
facilities to be left in place when it is not practical or desirable
to require removal.
Q.
Relocation Of Facilities.
1.
Required By City. The ROW user shall promptly remove, relocate,
or adjust any facilities located in the rights-of-way as directed
by the City when such is required by public necessity, or public convenience
and security require it, or such other findings in the public interest
that may require relocation, adjustment, or removal at the cost of
the ROW user. Such removal, relocation, or adjustment shall be performed
by the ROW user within the time frames established by the City and
at the ROW user's sole expense without any expense to the City, its
employees, agents, or authorized contractors and shall be specifically
subject to rules, regulations, and schedules of the City pertaining
to such. The ROW user shall proceed with relocations with due diligence
upon notice by the City to begin relocation and shall complete such
within the time frame provided by the City.
2.
Required By Third Party. The ROW user shall, upon request of
any other person requesting relocation of facilities and holding a
validly issued building or moving permit of the City, and within a
reasonable period of time and not less than forty-eight (48) hours
prior to the date upon which said person intends to exercise its rights
under said permit, thereupon temporarily raise, lower, or relocate
its wires or other facilities as may be required for the person to
exercise the rights under the permit, and the ROW user may require
such person to make payment in advance for any expenses incurred by
said ROW user pursuant to said person's request.
3.
ROW User Responsible For Damage. Any damages suffered by the
City, its agents, or its contractors to the extent caused by the ROW
user's failure to timely relocate, remove, or adjust its facilities,
or failure to properly relocate, remove, or adjust such facilities,
shall be borne by the ROW user. Where the ROW user shall fail to relocate
facilities as required by the City, the City may, but shall not be
required to, upon notice to the ROW user remove the obstructing facilities
with or without further delay and the ROW user shall bear all responsibility
and liability for the consequences therefrom, and the City shall bear
no responsibility to the ROW user or others for damage resulting from
such removal; provided that the ROW user has failed to relocate the
facilities within the time frame required by the City.
R.
No Cause Of Action Against The City. The ROW user shall have no damages
remedy or monetary recourse whatsoever against the City for any loss,
cost, expense or damage arising from any of the provisions or requirements
of any ROW use agreement, franchise, or other authorization, or because
of the enforcement thereof by said City, or from the use of the rights-of-way,
or for the failure of the City to have the authority to grant all,
or any part, of the herein granted. Nothing herein shall preclude
the ROW user from seeking injunctive or declaratory judgment relief
against the City where such relief is otherwise available and the
requirements therefor are otherwise satisfied; provided, however,
that the validity of an executed ROW use agreement or franchise shall
not be subject to challenge.
S.
ROW User Responsible For Costs. The ROW user shall be responsible
for all reasonable costs borne by the City that are directly associated
with the ROW user's installation, maintenance, repair, operation,
use, and replacement of its facilities within the rights-of-way that
are not otherwise accounted for as part of the permit fee established
pursuant to the ROW Ordinance, to the extent permitted by law. All
such costs shall be itemized, and the City's books and records related
to these costs shall be made available upon request to the ROW user.
T.
Insurance And Bonds. During the term of an agreement, the provider shall obtain and maintain, at the provider's sole expense, all insurance and bonds required by the ROW Ordinance, including specifically Section 525.280, or applicable ROW use agreement or franchise. Nothing contained in this Code shall limit the ROW user's liability to the City to the limits of insurance certified or carried.
[Ord. No. 2001-20 §1, 4-10-2001; Ord. No. 2019-03, 1-14-2019]
A.
Administration Of Franchise. The City shall be responsible for the
continued administration of this Code and any ROW use agreement or
franchise granted hereunder. The City may delegate this authority
from time to time in any manner consistent with applicable law; provided,
however, that the City shall not delegate enforcement authority.
B.
Appeals. Unless otherwise provided herein or by any generally applicable
administrative appeal process, a ROW user may appeal any decision
of the City pursuant to this Code to the Governing Body of the City
within fifteen (15) days of such decision where, upon written request
of the provider specifying this provision and including the details
of the alleged claim, an evidentiary hearing in accordance with the
contested case procedures under Chapter 536 shall be held on such
appeal. To the fullest extent permitted by law, this right of appeal
shall be exhausted before any action may be filed in any court against
the City or its officers, employees, boards, officials or commissions.
Nothing herein shall deny or preclude any additional applicable appeal
remedy that may be granted and required by Federal or State law after
such decision.
C.
Non-Enforcement By The City. A ROW user shall not be relieved of
its obligation to comply with any of the provisions of this Code or
its applicable ROW use agreement or franchise by reason of any failure
of the City to enforce prompt compliance.
D.
Violations; Penalties. Except as provided in Section 655.030, any person violating any provision of this Code shall be subject to a fine of five hundred dollars ($500.00) per day, per violation. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Code to the fullest extent allowed by law, including, but not limited to, the payment of a use fee or franchise fee. In addition to all other remedies, any person who shall have installed facilities in the rights-of-way prior to the effective date of this Code, or hereinafter, without the consent of the City shall be subject to pay as a penalty to the City three (3) times the use fees calculated from the date of installation to the earlier of the effective date of a lawful ROW use agreement or franchise with the City or the date the facilities are properly removed; provided that if such person accurately discloses the facilities and obtains a lawful ROW use agreement or franchise within thirty (30) days of the effective date of this Code, such person may avoid this penalty by paying with the application the actual use fee amount calculated for such period, plus interest and other fees provided herein.
E.
Publication Of Notices. All public notices or ordinances required
to be published by law shall be published in the official newspaper
of the City. A ROW user shall be responsible for all costs of publication
that may be required with respect to its ROW use agreement or franchise
or any amendments thereto.
F.
Severability. If any Section of this Code or a ROW use agreement
or franchise granted pursuant to it is held by a governmental authority
of competent jurisdiction to be invalid or unlawful as conflicting
with applicable laws now or hereafter in effect, or is held by a court
or competent governmental authority to be modified in any way in order
to conform to the requirements of any such applicable laws, such provision
shall be considered a separate, distinct and independent part of the
Code, ROW use agreement or franchise and, to the extent possible,
such holding shall not affect the validity and enforceability of all
other provisions therein.
G.
Reservation Of Rights. In addition to any rights specifically reserved
to the City by this Code, the City reserves unto itself every right
and power which is required to be reserved by a provision of any ordinance
under any registration, permit, or other authorization granted under
this Code, and as may be authorized by Chapter 67, RSMo., and other
authority applicable to regulation of the use of the rights-of-way.
Notwithstanding anything to the contrary set forth herein, the provisions
of this Code shall not infringe upon the rights of any person pursuant
to any applicable State or Federal Statutes, including, but not limited
to any right that may exist to occupy the rights-of-way.
