[HISTORY: Adopted by the Board of County Commissioners of
Otero County 1-10-2019 by Ord.
No. 19-02. Amendments noted where applicable.]
STATUTORY REFERENCES
Franchises; authorization — See NMSA 1978, §§ 3-42-1.
This franchise ordinance shall be known and may be cited as
the "TDS Cable Franchise."
A.
COMMISSION
COMPANY
COUNTY
GRANTEE
GRANTOR
PERSON
SYSTEM
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.
B.
The captions for each section herein are for convenience of reference
only, and shall not be considered in construing the language of any
section.
A.
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).
B.
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.
A.
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:
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
