[HISTORY: Adopted by the Board of County Commissioners of Otero County 1-10-2019 by Ord. No. 19-02. Amendments noted where applicable.]
Franchises; authorization — See NMSA 1978, §§ 3-42-1.
This franchise ordinance shall be known and may be cited as the "TDS Cable Franchise."
For purposes of this franchise ordinance, the following terms, phrases, words and their derivatives shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
- The Board of County Commissioners of Otero County, State of New Mexico.
- TDS Broadband Service LLC, a Delaware Limited Liability Company, and the grantee of rights under this franchise ordinance.
- The Board of County Commissioners of Otero County, New Mexico, including all future extensions thereof and additions thereto.
- The Company, its successors and assigns.
- The County.
- Any person, firm, partnership, association, corporation, company, organization, or entity of any kind.
- A cable television system, including all lines, wires, cables, fixtures, equipment, attachments and appurtenances used in the construction, operation or maintenance thereof.
The captions for each section herein are for convenience of reference only, and shall not be considered in construing the language of any section.
The grantor hereby grants to the company, and to its successors and assigns, the nonexclusive right to install, construct, erect, extend, operate, service, maintain and repair in, upon, along, across, above, over and under, and to in any way acquire the use of, all streets, sidewalks, alleyways, public easements, public grounds, public ways and public places, and all extensions and additions thereto, in the County, any and all posts, poles, pipes, conduits, lines, wires, cables, facilities, structures, and equipment, and all other useful fixtures and appurtenances, required or convenient for the purpose of installing, constructing, erecting, extending, operating, servicing, maintaining and repairing one or more systems in the County for the interception, reception, processing, transmission, distribution and sale of television, radio and other signals and data, including closed circuit, over-the-air and satellite-distributed signals and data, to the inhabitants of the County not residing within the service area of a system franchise granted by a city or village within the County; the right to replace, enlarge, extend and repair the said posts, poles, pipes, conduits, lines, wires, cables, facilities, structures, equipment, fixtures and appurtenances; and the right to make connections to all subscribers and users of the grantee's system(s).
The rights herein granted shall be subject to the requirement that the grantee shall so set and erect its said fixtures and appurtenances along said public ways so as not to interfere with the ordinary travel and desired use of said ways, and shall in a like manner maintain said equipment during the term of this franchise ordinance.
The grantee shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power of the grantor and to such reasonable regulations as the grantor shall hereafter provide. Additionally, the grantee shall, at all times during the life of this franchise, comply with and abide by all of the laws of the State of New Mexico, the Federal Communications Commission, and the United States of America, which laws and regulations are applicable to the grantee's operations.
The grantee shall maintain, and by its acceptance of this franchise ordinance specifically agrees that it will maintain, throughout the term of this franchise ordinance, liability insurance insuring the grantor and grantee as follows:
The insurance policy obtained by the grantee in compliance with the foregoing subsections shall be approved by the grantor, and such insurance policy, along with written evidence of the payment of the premiums thereon, shall be filed and maintained with the grantor during the term of this franchise ordinance.
The grantor shall notify the grantee within 30 days after the presentation of any claim or demand, whether made by suit or otherwise against the grantor, on account of any alleged act or conduct on the part of the grantee hereunder.
The grantor shall have the right to use, without cost, all poles within the County erected by the grantee for the purpose of stringing wires for the grantor's electrical distribution, fire alarm and police signal system, provided that the grantee shall neither assume nor incur any obligation or liability or be put to any additional expense in connection therewith, except maintenance of poles, and that the use of such poles by the grantor shall be in such a manner as not unnecessarily to interfere with the grantee's use of same.
The grantee agrees to operate its franchise within, and the grant of this franchise ordinance shall be limited to, the real property where the grantee is presently operating in Otero County. The grantee is hereby authorized to expand its system into any other unincorporated areas of the County.
The grantee shall maintain a business office within the County (or within any city or village within the County) or maintain a toll-free telephone number for the purpose of receiving inquiries and complaints from its subscribers. The grantee shall investigate all complaints, and shall in good faith attempt to resolve any such complaints promptly and equitably.
The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system.
The grantee shall at all times employ ordinary care and shall install and maintain in use such safety devices as are customary in the cable television industry for preventing failures and accidents which are likely to cause damages, injuries and nuisances to the public.
The grantee shall install and maintain its poles, pipes, lines, facilities, structures and equipment in accordance with ordinances of the grantor and in such manner that the same shall not interfere with any installations of the grantor or with a public utility serving the grantor.
All poles, pipes, lines, facilities, structures and equipment erected by the grantee in the County shall at all times be kept and maintained in good order and repair.
All poles, pipes, lines, facilities, structures and equipment erected by the grantee within the County shall be located so as to cause minimum interference with the proper use of the streets, alleyways, public easements and other public ways and public places, and to cause minimum interference with the right and reasonable conveyance of property owners, and the grantee shall comply with all reasonable, proper and lawful ordinances of the grantor now or hereafter in force.
The grantor reserves the right of reasonable regulation of the erection, construction and installation of any poles, pipes, lines, facilities, structures and equipment by the grantee and to reasonably designate where the same are to be placed upon any public way or public place.
During the term of this franchise ordinance, the grantee shall maintain true and accurate maps showing the exact location of all pipes, lines, facilities, structures and equipment. Such maps shall be made available for review by the grantor within 30 days of a written request.
The grantee shall, to the best of its ability, provide audio and video signals of uniform quality throughout the system. No subscriber shall receive a signal which is, on a continuous basis, significantly inferior to that of any other subscriber, and the signals shall meet such standards as may be promulgated by the Federal Communications Commission and the National Cable Television Association. Installation and service shall also conform to the National Electric Code of the National Bureau of Fire Underwriters. Signal leakage limits shall not exceed those specified by Part 15 of the Rules of the Federal Communications Commission.
In case of any disturbance of pavement, sidewalk, driveway or other such surfacing, the grantee shall, at its own cost and expense, replace and repair all paving, sidewalks, driveways or surfaces so disturbed to as good a condition as before the work involving such disturbance was done.
If at any time during the term of this franchise ordinance the grantee shall lawfully elect to alter or change the grade of any street, sidewalk, alleyway or other public way requiring the relocation of the facilities of the grantee, then upon reasonable notice by the grantor, the grantee shall remove, relay and relocate the same at its own expense.
The grantee shall, on the request of any person holding a building moving permit issued by the County, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the company shall have the authority, to require such payment in advance. The company shall be given not less than 48 hours advance notice to arrange for such temporary wire changes.
The grantee shall not place poles or other fixtures where the same will interfere with any gas, electric, or telephone fixture, water hydrant or main, and all such poles or other fixtures placed in any street shall be placed in the right-of-way between the roadway and property line as directed by the County Engineer or his authorized representative.
The grantee shall have the authority (but no obligation) to trim trees upon and overhanging all the streets, alleys, easements, sidewalks and public places of the County so as to prevent the branches of such trees from coming in contact with the facilities of the grantee.
The services provided by the grantee under this franchise ordinance shall be made available to any financially responsible household desiring such service, without regard to sex, race, religion, national origin or handicap, provided that such household can be served within 150 feet of the existing trunk or feeder lines of the system. Service may be rendered to potential customers located more than 150 feet from a distribution line upon such customer's individual negotiation of an additional payment or fee with and to the company.
The grantee shall give the grantor at least 30 days' prior written notice of any changes in monthly subscriber fees.
This franchise ordinance shall take effect and be in full force from and after the effective date hereof, and the same shall continue in full force and effect for a term of 15 years. Upon expiration of this franchise, the grantee shall have the option of renewing the franchise for an additional ten-year term. Should the grantee desire to exercise this option, it shall so notify the grantor in writing not less than six months prior to the expiration of this franchise ordinance.
If the grantee should violate any of the material terms, conditions or provisions of this franchise ordinance, and any such violation shall continue for 90 days after the grantee shall have been notified in writing by the grantor to desist, correct or commence correction of such violation as specified, then the grantor may terminate and cancel this franchise, and thereupon all of the rights and privileges granted by this franchise shall be deemed to have been forfeited and annulled. In the event such forfeiture is imposed, the grantee shall be afforded a period of one year after a final, nonappealable court order or decision for forfeiture, and including any appeal thereof, within which to sell, transfer or convey the system(s) to a qualified purchaser(s) at a fair market value as a going business, together with this franchise in full force and effect. During the one-year period, the grantee shall operate the system(s) pursuant to the terms and provisions of this franchise.
All of the rights and privileges and all of the obligations, duties and liabilities created by this franchise ordinance shall pass to and be binding upon the successors of the grantor and the successors and assigns of the grantee.
The grantee agrees to reimburse the grantor for any and all fees incurred by the grantor in connection with the publication of this franchise ordinance, and for any other costs incurred by the grantor in connection with the grant of the franchise evidenced hereby, pursuant to NMSA 1978, § 3-42-1, as amended.
In any section, subsection, sentence, clause, phrase or portion of this franchise ordinance is for any reason held invalid or unconstitutional by any federal or state court of competent jurisdiction, each provision hereof shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining provisions hereof.
This franchise ordinance shall become effective and be in full force and effect from and after the 10th day of January, 2019.