Exhibit 10.6
Litchfield, IL
Cable Television Franchise Ordinance
An Ordinance Setting Forth Regulations, Terms and Conditions Under Which Cable
Television Systems Shall Operate in Litchfield, IL and Granting to Enstar Income
Program II-1 a Franchise to Construct, Operate and Maintain a Cable Television
System Within the City.
TABLE OF CONTENTS
TITLE AND PURPOSES OF ORDINANCE ..................................................................................... 1
DEFINITIONS ......................................................................................................... 1
FRANCHISE TO OPERATE REQUIRED ....................................................................................... 3
GRANT OF FRANCHISE .................................................................................................. 3
FRANCHISE FEES ...................................................................................................... 3
SUBSCRIBER RATES .................................................................................................... 4
CUSTOMER SERVICE AND CONSUMER PROTECTION ............................................................................ 5
INFORMATION PROVIDED BY GRANTEE TO SUBSCRIBERS....................................................................... 6
TECHNICAL STANDARDS.................................................................................................. 7
EXTENSION OF CABLE SERVICE........................................................................................... 7
FREE BASIC CABLE SERVICE TO PUBLIC BUILDINGS......................................................................... 9
SYSTEM IMPROVEMENTS.................................................................................................. 9
INSURANCE............................................................................................................ 10
INDEMNIFICATION...................................................................................................... 10
FRANCHISE VIOLATIONS: PROCEDURES, NOTICE, AND CURE................................................................... 11
FRANCHISE TERMINATION AND CONTINUITY OF SERVICE...................................................................... 12
FORCE MAJEUR......................................................................................................... 12
GRANT OF ADDITIONAL FRANCHISE AND COMPETING SERVICE PROVIDERS ....................................................... 13
TRANSFER OR ASSIGNMENT OF FRANCHISE ................................................................................. 14
COMPLIANCE WITH STATE AND FEDERAL LAW................................................................................ 15
NOTICE TO THE GRANTEE................................................................................................ 15
STREET OCCUPANCY .................................................................................................... 15
ACCESS TO PUBLIC AND PRIVATE PROPERTY................................................................................ 16
NONDISCRIMINATION IN EMPLOYMENT...................................................................................... 16
GRANTEE MAY ISSUE RULES ............................................................................................. 17
SEVERABILITY OF ORDINANCE PROVISIONS................................................................................. 17
EFFECTIVE DATE ...................................................................................................... 17
AN ORDINANCE SETTING FORTH THE REGULATIONS, TERMS AND CONDITIONS UNDER WHICH
CABLE TELEVISION SYSTEMS SHALL OPERATE IN LITCHFIELD, IL AND GRANTING A
FRANCHISE TO ENSTAR INCOME PROGRAM II-1, ITS SUCCESSORS AND ASSIGNS TO
CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY
BE IT ORDAINED BY THE CITY COUNCIL OF LITCHFIELD, IL AS FOLLOWS:
1 TITLE AND PURPOSES OF ORDINANCE
This Ordinance shall be known as the Litchfield Cable Television Franchise
Ordinance. The purposes of this Ordinance are: a) to establish the terms and
conditions under which a cable television system must operate within Litchfield,
IL (which may hereafter be referred to as "City", "Franchising Authority", or
"Grantor"); b) to provide for the payment of a franchise fee to the City for
costs associated with administering and regulating the system; and c) to grant a
cable television franchise to Enstar Income Program II-1 (hereafter referred to
as Enstar" or "Grantee").
2 DEFINITIONS
For the purposes of this Ordinance the following terms, phrases, words and their
derivations shall have the meaning defined herein, unless the context clearly
indicates that another meaning is intended. 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.
2.1 "Cable Act" means The Cable Communications Policy Act of 1984
as modified by The Cable Television Consumer Protection and Competition
Act of 1992, and the Telecommunications Act of 1996.
2.2 "Cable Television System" means any non-broadcast facility
consisting of a set of transmission paths and associated signal
reception, transmission and control equipment, that is designed to
distribute to subscribers or other users audio, video and other forms
of communications services via electronic or electrical signals.
2.3 "Channel" is a band of frequencies in the electromagnetic
spectrum, capable of carrying one audio-visual television signal.
2.4 "City" means Litchfield, IL in its present form or in any
later reorganized, consolidated, enlarged or reincorporated form, which
is legally authorized to grant a cable television franchise under state
and federal law. The City may also be referred to as "Franchising
Authority" or "Grantor".
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 1
2.5 "Enstar" means Enstar Income Program II-1, which may also be
referred to as "Grantee".
2.6 "FCC" means the Federal Communications Commission.
2.7 "Franchise" means the rights granted pursuant to this
Ordinance to construct, own and operate a cable television system along
the public ways in the City, or within specified areas in the City.
2.9 "Franchise Area" means that portion of the City for which a
franchise is granted under the authority of this Ordinance. If not
otherwise stated in an exhibit to this Ordinance, the Franchise Area
shall be the legal and geographic limits of the City, including all
territory which may be hereafter annexed to the City.
2.9 "Franchising Authority" means Litchfield, IL, its City Council
acting as the City's duly elected governing body, its lawful successor
or such other person or body duly authorized by the City to grant a
cable television franchise.
2.10 "Grantee" means a person or business entity, or its lawful
successor or Assignee, which has been granted a franchise by the City
pursuant to this Ordinance.
2.11 "Gross Subscriber Receipts" as the term is used in calculating
franchise fees means revenues actually received by the Grantee from
television and other services (other services include, but are not
limited to, monthly fees charged Subscribers for Basic Service; monthly
fees charged Subscribers for any tier of Cable Service other than Basic
Service; Installation, disconnection and re-connection fees; leased
Channel fees; Converter rentals; advertising revenues; revenues from
home shopping Channels) arising from and attributable to the operation
of a cable system in Litchfield after deducting the following: a) any
fees or assessments levied on subscribers or users of the system which
are collected by the Grantee for payment to a governmental entity; b)
franchise fees paid by the Grantee to the City; c) state or local sales
or property taxes imposed on the Grantee and paid to a governmental
entity; and d) federal copyright fees paid by the Grantee to the
Copyright Tribunal in Washington, DC.
2.12 "Normal Business Hours" means those hours during which most
similar businesses in the community are open to serve customers.
2.13 'Normal Operating Conditions" means those service conditions
which are within the control of the Grantee. Those conditions which are
not within the control of the Grantee include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages, and severe or unusual weather conditions. Those conditions
which are ordinarily within the control of the 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.
Litchfield, IL Cable TV Franchise Ordinance
January 25, 2000
Page 2
2.14 "Public Way" or "Right-of-Way" means the surface, the air
space above the surface and the area below the surface of any public
street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge,
tunnel, park, parkways, waterways, or other public right-of-way
including public utility easements or rights-of-way and any temporary
or permanent fixtures or improvements located thereon now or hereafter
held by the City which shall entitle the City and the Grantee to the
use thereof for the purpose of installing and maintaining the Grantee's
cable television system.
2.15 "School" means any public elementary or secondary school.
2.16 "Service Interruption" means the loss of picture or sound on
one or more cable channels.
2.17 "Subscriber" means any person who receives monthly cable
television service provided by the Grantee's cable television system.
3 FRANCHISE TO OPERATE REQUIRED
It shall be unlawful to operate a cable television system within the City unless
a valid franchise has first been obtained from the City pursuant to the terms of
this Ordinance. A franchise granted pursuant to this Ordinance shall authorize
the Grantee to provide cable television services within the City and to charge
subscribers for such services. It shall also authorize and permit the Grantee to
traverse any portion of the City in order to provide service outside the City.
Unless otherwise specified, the Franchise Area shall be the legal boundaries of
the City.
4 GRANT OF FRANCHISE
A non-exclusive franchise is hereby granted to Enstar Income Program II-1 (which
may be referred to herein as "Enstar" or "Grantee") to operate and maintain a
cable television system in the City for a period of ten (10) years commencing on
the date of adoption of this ordinance. Enstar shall have the option to renew
this franchise for an additional term of five (5) years, provided that it is in
substantial compliance with the material terms of this ordinance at the time of
its expiration.
5 FRANCHISE FEES
5.1 The Grantee shall pay a franchise fee which is intended to
compensate the City for all costs which may be associated with
administering or regulating Grantee's cable system. The amount of the
franchise fee shall be five (5%) percent of the Grantee's annual Gross
Subscriber Receipts, as defined herein. Such fee shall be paid on a
quarterly basis. Grantee shall be entitled to list the franchise fee
as a separate line item on monthly bills.
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 3
5.2 Due to federal and local regulations requiring that Grantee
notify cable subscribers at least thirty (30) days prior to the
effective date of any increases in monthly charges on subscriber bills,
any increased franchise fee amounts which may be due to the City shall
begin accruing sixty (60) days following the effective date of this
Ordinance. If the City requires more than thirty (30) days notice to
subscribers of increased rates, then any increased franchise fee
amounts which may be due to the City shall begin accruing sixty (60)
days after the City's required notice period.
5.3 Within 120 days from the end of the fiscal quarter Grantee
shall file a report showing Grantee's Gross Subscriber Receipts for the
calendar year and the amount of franchise fees due to the City. The
Grantee shall have an obligation to maintain financial records of its
Gross Subscriber Receipts and Grantee fee payments for audit purposes
for a period of three years, and the City shall have the right to audit
the Grantee's books at the offices where such books are maintained.
6 SUBSCRIBER RATES
6.1 All charges to subscribers shall be consistent with a schedule
of fees for services offered and established by the Grantee. Rates
shall be nondiscriminatory in nature and uniform to persons of like
classes under similar circumstances and conditions.
6.2 The Grantee will provide the City with thirty (30) days
advance written notice of any change in rates and charges whenever
possible.
6.3 Grantee may offer different or discounted rates at its
discretion for promotional purposes and may establish different rates
for different classes of subscribers where appropriate, such as
offering discounted rates to low income individuals or groups or bulk
rates to multiple unit dwellings.
6.4 Grantee shall inform each new subscriber of all applicable
fees and charges for providing cable television service.
6.5 Grantee may, at its own discretion and in a non-discriminatory
manner, waive, reduce or suspend connection fees, monthly service fees
or other charges on a one time or monthly basis for promotional
purposes.
6.6 Grantee may refuse to provide service to any person because a
prior account with that person remains due and owing.
6.7 A Grantee may offer service which requires advance payment of
periodic service charges.
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January 3, 2000
Page 4
6.8 The Grantee shall provide refunds to subscribers in the
following cases:
6.8(a) If the Grantee fails within a reasonable time to
commence service requested by a subscriber, it will refund all
deposits or advance charges that the subscriber has paid in
connection with the request for such service at the request of
the subscriber.
6.8(b) If a subscriber terminates any service at any time
and has a credit balance for deposits or unused services, upon
request from the subscriber and upon return of all of
Grantee's equipment, the Grantee will refund the appropriate
credit balance to the subscriber. The subscriber will be
responsible for furnishing the Grantee a proper address to
which to mail the refund.
6.8(c) If any subscriber's cable service is out of order for
more than 48 consecutive hours during the month due to
technical failure, damage, or circumstances within the control
of the Grantee, the Grantee will credit the account of that
subscriber on a pro rata basis upon the subscriber's written
request. The credit will be calculated using the number of
twenty-four (24) hour periods that service is impaired and the
number of channels on which service is impaired as a fraction
of the total number of days in the month that the service
impairment occurs and the total number of channels provided by
the system in the absence of an impairment.
7 CUSTOMER SERVICE AND CONSUMER PROTECTION
7.1 CABLE SYSTEM OFFICE HOURS AND TELEPHONE AVAILABILITY
The Grantee will maintain a local, toll-free or collect call telephone
access line which will be available to its subscribers 24 hours per
day, seven days per week. Trained company representatives will be
available to respond to customer telephone inquiries during normal
business hours. After normal business hours, the access line may be
answered by a service or an automated response system, including an
answering machine. Inquiries received after normal business hours must
be responded to by a trained company representative on the next
business day. Customer service center and bill payment locations will
be open at least during normal business hours.
7.2 INSTALLATION, OUTAGES AND SERVICE CALLS
7.2(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 125 feet from
the existing distribution system.
7.2(b) Excluding conditions beyond the control of the
Grantee, the Grantee will begin working on "outages" to cable
service promptly, and in no event shall the response time for
calls received between 7:00 AM and 12:00 Midnight exceed four
(4) hours, except that the Grantee or its employees shall not
be required to perform work past
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 5
12:00 Midnight, it shall complete work necessary to correct
the outage, the following day. The Grantee must begin actions
to correct all other service problems the next business day
after notification of the service problem. For the purposes of
this Agreement, an outage shall be defined as the cessation of
video and/or audio reception on one or more channels affecting
three (3) or more subscribers who receive service from the
same cable, feeder line, or node, or who receive cable service
from the same cable system tap serving a multi-family
dwelling.
7.2(c) The "appointment window" alternatives for
installations, service calls, and other installation
activities will be either a specific time or a four-hour time
block during normal business hours. The Grantee may schedule
service calls and other installation activities outside of
normal business hours for the express convenience of the
customer.
7.2(d) If Grantee's representative is running late for an
appointment with a customer and will not be able to keep the
appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which
is convenient for the customer.
7.2(e) If the Grantee's service representative appears for
an appointment scheduled by a customer within the time period
promised and no one is present at the customer's dwelling to
permit necessary physical access to the dwelling unit, then
Grantee may charge the customer for the service call, up to a
maximum of $25.
8 INFORMATION PROVIDED BY GRANTEE TO SUBSCRIBERS
8.1 The Grantee shall provide written information on each of the
following areas at the time of installation of service, at least
annually to all subscribers, and at any time upon request: products and
services offered; prices and options for programming services and
conditions of subscription to programming and other services;
installation and services maintenance policies; instructions on how to
use the cable service; channel positions of programming carried on the
system; and billing and complaint procedures, including the address and
telephone number of the local franchise authority's cable office.
8.2 Customers will be notified of any changes in rates,
programming services or channel positions thirty (30) days in advance
of such changes if the change is within the control of the Grantee. In
addition, the Grantee shall notify subscribers thirty (30) days in
advance of any significant changes in the other information required by
paragraph (c)(3)(i)(A) of this section. Notwithstanding any other
provision of Part 76, 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 charge of any kind
imposed by any Federal agency, State, or Franchising Authority on the
transaction between the Grantee and the subscriber.
8.3 Bills will be clear, concise and understandable. Bills will be
itemized, with
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 6
itemizations including basic and premium service charges and equipment
charges. Bills will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits. In
case of a billing dispute, the Grantee must respond to a written
complaint from a subscriber within thirty (30) days.
8.4 Refund checks will be issued promptly, but no later than
either: the customer's next billing cycle following resolution of the
request or sixty (60) days, or the return of the equipment supplied by
the Grantee if service is terminated.
8.5 Credits for services will be issued no later than the
customer's next billing cycle following the determination that a credit
is warranted.
9 TECHNICAL STANDARDS
9.1 Grantee shall be responsible for insuring that the cable
system is designed, installed, and operated in a manner that fully
complies with Federal Communications Commission (FCC) rules regarding
cable television technical standards. Grantee shall be prepared to
show, on request by an authorized representative of the Commission or
the Franchising Authority, that the system does, in fact, comply with
the rules.
9.2 Grantee shall conduct complete performance tests of the system
at least twice each calendar year (at intervals not to exceed seven
months), and shall maintain the resulting test data on file at the
Grantee's local business office for at least five (5) years. The test
data shall be made available for inspection by the Commission or the
local franchiser, upon request. The performance test shall be directed
at determining the extent to which the system complies with all the
technical standards set forth in Section 76.605(a) of the Commission's
rules.
10 EXTENSION OF CABLE SERVICE
10.1 A Grantee which is not already serving the entire franchise
area shall provide service to all portions of the franchise area
reaching a minimum density of thirty (30) dwelling units per linear
strand mile, as measured from the nearest coaxial cable line, within
twelve (12) months after the grant of a franchise.
10.2 Grantee shall provide aerial or buried drop lines to new
subdivisions within the franchise area at the request of the developer
provided that the developer contracts and agrees with the Grantee to
pay the cost of the extension of the service.
10.3 Grantee shall extend and make cable television service
available to any resident within the franchise area who requests
connection at the standard connection charge if the connection to the
resident would require no more than a standard one hundred and fifty
(150) foot aerial drop or a seventy-five (75) foot buried drop line or
extension from the nearest coaxial feeder cable. With respect to
requests for connection requiring an aerial or buried drop line in
excess
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 7
of the maximum standard distance, Grantee shall extend and make
available cable television service to such residents at a connection
charge not to exceed its actual costs for the distance exceeding the
standard one hundred and fifty (150) feet of aerial or seventy-five
(75) feet of underground cable respectively.
10.4 In areas with fewer than thirty (30) residential units per
proposed cable bearing strand mile, Grantee shall offer a cost-sharing
arrangement with residents. A dwelling unit will be counted for this
purpose if its lot fronts a street. The cost-sharing arrangement shall
consist of the following:
10.4(a) At the request of a resident desiring service,
Grantee shall determine the cost of the plant extension
required to provide service to the potential subscriber from
the closest point on the cable system where it is technically
feasible. The cost of construction shall be allocated based on
the following formula:
10.4(a)(1)If a request for extension of service into
a residential area requires the construction of cable
plant which does not pass at least thirty (30)
potential subscribers per proposed cable bearing
strand mile, Grantee and residents who agree to
subscribe to cable service will each bear their
proportionate share of construction costs. For
example, if there are five (5) dwelling units per
proposed cable bearing strand mile, Grantee's share
will equal 5/30ths or one sixth (1/6) of the
construction cost. The remaining cost will be shared
equally by each subscriber.
10.4(a)(2)Should additional residents actually
subscribe to cable television service in areas where
subscribers have already paid a proportionate share
under the extension cost sharing formula, subscribers
who have previously paid a proportionate share under
the extension formula shall be reimbursed pro rata
for their contribution or a proportional share
thereof. In such case, the pro rata shares shall be
recalculated and each new subscriber shall pay the
new pro rata share, and all subscribers who
previously paid a proportionate share shall receive
pro rata refunds. In the event such subscribers (or
prior subscribers) have been disconnected or have
moved and owe the Grantee money which has not been
recovered, Grantee shall have the right to first
apply the refund to amounts owed the Grantee and give
the balance, if any to the subscriber. At such time
as there are thirty (30) potential subscribers per
cable bearing strand mile, the subscribers shall
receive their pro rata share of construction costs.
In any event, one (1) year after the completion of a
project, subscribers who have paid a share of line
extension costs are no longer eligible for refunds,
and the amounts paid in construction costs will be
credited to the plant account of Grantee.
10.4(a)(3)Where the density of residential dwelling
and occupied commercial or industrial structures,
adverse terrain, or other factors render extension of
the system and offering of cable service impractical,
technically infeasible or
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 8
would create an economic hardship, the City may, upon
petition of the Grantee, either waive the extension
of the system into such areas, or allow the extension
and offer of service on special terms or conditions
which are reasonable and fair to the City , the
Grantee and potential subscribers in such areas.
11 FREE BASIC CABLE SERVICE TO PUBLIC BUILDINGS
Grantee shall provide, without charge, one service outlet activated for basic
subscriber service to each police station, fire station, public school, public
library and the City office. If it is necessary to extend Grantee's trunk or
feeder lines more than two hundred (200) feet solely to provide service to any
such school or public building, the City or the building owner or occupants
shall have the option of either paying Grantee's direct costs for line
extensions in excess of two hundred (200) feet or releasing the Grantee from the
obligation to provide service to such building. Furthermore, Grantee shall be
permitted to recover the direct cost of installing cable service, when requested
to do so, in order to provide: a) more than one outlet, b) inside wiring, or c)
a service outlet requiring more than two hundred (200) feet of drop cable to any
public building.
12 SYSTEM IMPROVEMENTS
12.1 SYSTEM UPGRADE
Grantee agrees to upgrade the existing Litchfield cable TV system on or
before January 1, 2001. The upgraded system will be constructed so as
to provide the capability of passing a minimum of 83 channels on an
analog and/or digital basis through its trunk and feeder lines.
12.2 PEG ACCESS
12.2(a) Within ninety (90) days of completion of the upgrade,
Enstar Cable agrees to provide and maintain one Access channel
on its cable system for exclusive Governmental and/or
Educational use.
12.2(b) Within ninety (90) days of completion of the upgrade,
Enstar Cable agrees to provide an audio/visual return path
from the studio located at 1700 North State Street which will
allow the City to cablecast live or taped programming on the
Access channel to all subscribers via the subscriber network.
12.2(c) Enstar agrees to provide to the City two annual PEG
access support payments of $6,000 each, for a total support
payment of $12,000 over the life of this Agreement. The
support payments shall be due upon the first and second year
anniversaries of this Agreement. Grantee shall have the right
to collect the two $6,000 payments from its subscribers on a
monthly pro rata, per subscriber basis, and to identify the
amount it collects on behalf of the City as a line item
pass-through on subscriber's billing statements. No additional
payment will be due during the term of this Agreement.
12.2(d) Grantee may pass through to subscribers, in their
monthly billing statements, the direct and indirect costs of
satisfying the above franchise requirements that are required
by the franchising authority to sub public, educational, and
governmental
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 9
access channels as allowed by federal law. Such costs may
include the per channel cost of providing PEG access channels,
PEG access programming, and a reasonable allocation for
general and administrative overhead.
12.3 PROGRAMMING
Upon completion of the rebuild Enstar Cable agrees to provide
additional programming options. Enstar Cable agrees to meet with the
City on a periodic basis for the purpose of receiving input into the
determination of specific programming choices. Programming decisions
may be based on the following determining factors: program
availability, signal strength, community needs, and economic viability.
Grantee specifically agrees to consider the following new programming
additions upon completion of the rebuild: University of Illinois
sporting events and Pay-Per-View movie & special event options.
13 INSURANCE
Within ninety (90) days following the grant of a franchise the Grantee shall
obtain the following insurance policies:
13.1 A general comprehensive liability policy indemnifying,
defending and saving harmless the City, its officers, boards,
commissions, agents or employees from any and all claims by any person
whatsoever on account of injury to or death of a person or persons
occasioned by the operations of the Grantee under the franchise herein
granted, or alleged to have been so caused or occurred, with a minimum
liability of One Million Dollars ($1,000,000) per personal injury,
death of any one person or damage to property and Two Million Dollars
($2,000,000) for personal injury, death of any two or more persons in
any one occurrence or damage to property.
13.2 All insurance policies called for herein shall be in a form
satisfactory to the City and shall require thirty (30) days written
notice of any cancellation to both the City and the Grantee. The
Grantee shall, in the event of any such cancellation notice, obtain,
pay all premiums for, and file with the City , written evidence of the
issuance of replacement policies within thirty (30) days following
receipt by the City or the Grantee of any notice of cancellation. In
recognition of the foregoing each party agrees to cause their
respective insurance carriers to waive any rights of subrogation.
14 INDEMNIFICATION
The Grantee, by its acceptance of a franchise granted pursuant to this
Ordinance, shall indemnify and hold harmless the City, its officials, boards,
commissions and employees against any and all claims, suits, causes of action,
proceedings, and judgments for damage arising out of the award of a franchise to
the Grantee and its operation of the cable television system under the
franchise, such indemnification shall include any related attorney fees. These
damages shall include, but not be limited to, penalties arising out of copyright
infringements and damages arising out of any failure by Grantee to secure
consents from the owners, authorized distributors or licensees of programs to be
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 10
delivered by the Grantee's cable television system whether or not any act or
omission complained of is authorized, allowed, or prohibited by the franchise.
15 FRANCHISE VIOLATIONS: PROCEDURES, NOTICE, AND CURE
Before exercising any right of redress available to it under the terms of this
Ordinance, including determination of any penalty assessable under applicable
law, the City shall follow the procedures set forth in this Section.
15.1 The City shall notify Grantee in writing, by Certified Mail,
of any alleged violation, ("Violation Notice") which notice shall
include a detailed description of any alleged violation and a request
for cure of such violation.
15.2 Except in the case of a safety hazard posing an imminent
danger to public health and safety, Grantee shall have thirty (30) days
from the date of receipt of such notice to respond in writing,
indicating: (1) that Grantee has cured the alleged violation, providing
reasonable documentation demonstrating that the alleged violation has
been cured; (2) that Grantee has commenced or will commence actions to
cure the alleged violation, but that the alleged violation cannot
reasonably be cured immediately, describing the steps taken to be taken
to cure the alleged violation; or (3) that grantee disagrees with the
allegation that a violation has occurred and contests the Violation
Notice, stating the reasons therefor. Pending the completion of an
administrative hearing which may be held, the City shall not impose
penalties upon Grantee.
15.3 Upon receipt of Grantees response to the Violation Notice, the
City may either accept Grantee's explanation and/or proposed cure, or
if it believes that the violation will not be cured within a reasonable
period of time, the City may schedule an administrative hearing,
affording Grantee due process, and an opportunity to present evidence.
Grantee shall be given at least thirty (30) days written notice of such
a hearing.
15.4 Within thirty (30) days of an administrative hearing, the City
shall issue a written report stating its findings and the reasons
therefor. The City may determine (a) that the alleged violation has
been corrected, or is in the process of being corrected by Grantee, and
that no further action is required; (b) that an extension of the time
or other appropriate relief should be granted until the cure can be
completed; (c) that the problem is beyond Grantee's direct control and
that Grantee is not at fault; or (c) that Grantee has violated one or
more provisions of its franchise and that appropriate action should be
taken by the City.
15.5 In case of an alleged violation(s) of applicable system
technical standards, construction standards, or safety codes, if the
alleged violation does not pose a substantial and immediate safety
hazard, Grantee shall be allowed a reasonable and sufficient time to
complete any required corrections or repairs to the system. So long as
Grantee demonstrates that it is working diligently and in good faith to
correct any
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 11
alleged technical violations, the City shall not assess penalties
against the Grantee. A "substantial and immediate safety hazard" shall
be defined as one posing an imminent likelihood of causing significant
bodily injury if not repaired immediately. Grantee shall not be
penalized for other minor violations of the Franchise or applicable
codes, so long as Grantee makes its best efforts to correct any problem
or violation within a reasonable period of time of the discovery of
alleged violation.
15.6 Nothing in this section shall be construed to restrict
Grantee's right to appeal the City's actions to a court of competent
jurisdiction.
16 FRANCHISE TERMINATION AND CONTINUITY OF SERVICE
16.1 In the event of a formal denial of renewal or revocation of a
franchise, which denial or revocation is upheld by final judicial
adjudication of any appeal(s) which may be filed, the Grantee shall be
have a period of one (1) year from such final adjudication within which
to transfer or convey the assets of the cable system to another owner.
Approval of such proposed transfer or assignment shall not be
unreasonably withheld by the City.
16.2 In the event the franchise term expires prior to formal action
being taken by the City either to renew the franchise or deny renewal,
the term of this franchise shall automatically be extended until such
time as formal action to renew or deny renewal is taken by the City.
The renewal procedures and criteria contained in Section 626(c) of the
Cable Communications Policy Act of 1984, as amended, shall be followed
by the City and the Grantee.
17 FORCE MAJEUR
In the event the Grantee is prevented or delayed in the performance of any of
its obligations under this Ordinance by reason of flood, fires, hurricanes,
tornadoes, earthquakes or other acts of God, unavoidable casualty,
insurrections, war, riot, sabotage, unavailability of materials or supplies,
vandalism, strikes, boycotts, lockouts, labor disputes, shortage of labor,
unusually severe weather conditions, acts or omissions or delays by utility
companies upon whom Grantee is dependent for pole attachments or easement use,
Grantee is unable to obtain necessary financing or any other event which is
beyond the reasonable control of the Grantee, the Grantee shall have a
reasonable time under the circumstances to perform its obligations under this
Ordinance or to procure a reasonable and comparable substitute for such
obligations. Under such circumstances the Grantee shall not be held in default
or noncompliance with the provisions of the Ordinance nor shall it suffer any
penalty relating thereto.
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 12
18 GRANT OF ADDITIONAL FRANCHISE AND COMPETING SERVICE PROVIDERS
18.1 APPLICATION PROCEDURES
18.1(a) An application for a new cable television franchise
shall be submitted to the City in a form specified by or
acceptable to the City, and in accordance with procedures and
schedules established by the City. The City may request such
facts and information as it deems appropriate.
18.1(b) Upon request, any applicant shall furnish to the City
a map of suitable scale, showing all roads and public
buildings, which indicates the areas to be served and the
proposed dates of commencement of service for each area. The
proposed service area shall be subject to approval by the
City. If approved, the service area shall be incorporated into
any franchise granted pursuant to this Ordinance. If no
service area is specifically delineated in a franchise, it
shall be considered to be coterminous with the boundaries of
the City.
18.1(c) After receiving an application for a franchise, the
City shall examine the legal, financial, technical and
character qualifications of the applicant. The City may grant
one or more non-exclusive franchises creating a right to
construct and operate a cable television system within the
public ways of the City, subject to the provisions of this
Section.
18.1(d) In the event an application is filed proposing to
serve a franchise area which overlaps, in whole or in part, an
existing Grantee's franchise area, a copy of such application
shall be served upon any existing Grantee by the City by
registered or certified mail. Such notice shall be considered
a condition precedent to consideration of the application for
a franchise by the City.
18.2 COMPETING SERVICE PROVIDERS
18.2(a) Any franchise granted by the City shall be
non-exclusive. However, nothing in this ordinance shall be
construed to require it to grant more than one franchise if
the City determines, that granting additional franchises would
be detrimental to the public interest.
18.2(b) In the event a competing service provider commences
operation of a communications facility which offers services
similar to those offered by Grantee, the City shall not
require Grantee to operate under terms or conditions otherwise
required by this Ordinance which are either less favorable or
more burdensome than those under which the competing service
provider must operate. Any franchise which may be granted by
the City to a competing service provider shall require the new
Grantee to
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 13
provide cable service to the entire franchise area then served
by the existing Grantee. An existing Grantee may, at its
discretion, comply with the most favorable terms contained in
any subsequent franchise granted by the City.
18.3 PERMITS FOR NON-FRANCHISED ENTITIES
The City may issue a license, easement or other permit to a person
other than the Grantee to permit that person to traverse any portion of
the Grantee's franchise area within the City in order to provide
service outside, but not within the City. Such license or easement,
absent a grant of a franchise in accordance with this Ordinance, shall
not authorize nor permit said person to provide cable television
service of any type to any home or place of business within the City
nor render any other service within the City.
19 TRANSFER OR ASSIGNMENT OF FRANCHISE
19.1 A Grantee may transfer or assign its franchise to another
entity (the "Assignee") upon thirty (30) days notice to the City. The
Grantee shall provide to the City a reasonable showing that the
proposed Assignee or Transferee possesses the technical and financial
qualifications to operate the cable TV system properly. The proposed
Transferee or Assignee shall provide the City with a written statement
that it agrees to comply with all material terms of the franchise to be
transferred. The City shall not unreasonably delay or deny the
assignment or transfer of a franchise. The reasonableness of the City's
actions shall be subject to judicial review by a court of appropriate
jurisdiction. The proposed transfer or assignment shall be deemed
approved if no action is taken by the City within sixty (60) days of
the written request for transfer by the Grantee.
19.2 The Grantee may secure financing or an indebtedness by trust,
mortgage, or other instrument of hypothecation of the franchise, in
whole or in part, without requiring the consent of the City. Consent
shall not be required to assign a franchise from one business entity to
another which is operated or managed by the Grantee or any affiliated
entity. In addition, so long as the manager and/or general partner of
the Grantee remains the same, consent shall not be required to transfer
the interests of any limited partner of the Grantee, who has no day to
day operational control of the Grantee or the system.
19.3 A Grantee may transfer or assign its franchise to an
affiliated entity upon thirty (30) days notice to the City. Consent of
the City shall not be required for such an assignment, provided that;
a) the City is provided with a reasonable showing that the proposed
Assignee possesses the technical and financial qualifications to
operate the cable TV system and, b) that the Assignee agrees to comply
with the terms of this Ordinance.
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 14
20 COMPLIANCE WITH STATE AND FEDERAL LAW
The Grantee and the City shall at all times comply with all applicable State and
Federal laws and the applicable rules and regulations of administrative
agencies. If the Federal Communications Commission (FCC) or any other federal or
state governmental body or agency enacts any law or regulation or exercises any
paramount jurisdiction over the subject matter of this Ordinance or any
franchise granted hereunder, the jurisdiction of the City shall cease and no
longer exist to the extent such superseding jurisdiction shall preempt or
preclude the exercise of like jurisdiction by the City. The City and the Grantee
reserve all rights they each may possess under law, unless expressly waived
herein.
21 NOTICE TO GRANTEE
Except as otherwise provided in this Ordinance, the City shall not meet to take
any action involving the Grantee's franchise unless the City has notified the
Grantee by certified mail at least thirty (30) days prior to such meeting, as to
its time, place and purpose. The notice provided for in this section shall be in
addition to, and not in lieu of, any other notice to the Grantee provided for in
this Ordinance. All notices, requests, demands and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if mailed by certified mail return receipt requested, addressed to the
Grantee's corporate office as follows:
Enstar Income Program II-1
C/o Charter Communications
12444 Powerscourt Dr. Suite 100
St. Louis, Missouri 63131
Attn: Celeste Vossmeyer
22 STREET OCCUPANCY
22.1 Grantee shall utilize existing poles, conduits and other
facilities whenever possible, but may construct or install new,
different, or additional poles, conduits, or other facilities whether
on the public way or on privately-owned property with the written
approval of the appropriate government authority, and, if necessary the
property owner. Such approval shall not be unreasonably withheld by the
governmental agency.
22.2 All transmission lines, equipment and structures shall be so
installed and located as to cause minimum interference with the rights
and appearance and reasonable convenience of property owners who adjoin
on any public way and at all times shall be kept and maintained in a
safe condition and in good order and repair. The Grantee shall at all
times employ reasonable care and shall use commonly accepted methods
and devices for preventing failures and accidents which are likely to
cause damage, injuries or nuisances to the public.
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 15
22.3 Grantee shall have the authority to trim trees on public
property at its own expense as may be necessary to protect its wires
and facilities, subject to the direction of the City or other
appropriate governmental authority.
22.4 The Franchisee shall, upon reasonable notice, protect or
relocate its cable communications system, or part thereof, from any
street, easement or right of way, as reasonably directed by the
Municipality. However, Grantee shall only be required to place its
wiring underground if all other existing utilities are also required to
be placed underground. Unless an emergency situation exists, for the
purpose of this section and in order to allow the Franchisee to budget
for any required relocation, in the event a public works or public
improvement project is pre-planned in the Municipality's prior year
budget process, "reasonable notice" will be construed as written
notification of no later than October 31 of the prior year, or within
45 days of the conclusion of Municipality's budget process, whichever
allows the Municipality more time. The Grantee shall in all cases have
the right of abandonment of its property. If public funds are available
to any company using such street, easement, or right of way for the
purpose of defraying the cost of the foregoing, such funds shall also
be made available to the Grantee.
23 ACCESS TO PUBLIC AND PRIVATE PROPERTY
23.1 Grantee shall have the right to enter and have access to the
property and premises of the City or that of any subscriber for
purposes of installing cable TV service or recovering and removing
Grantee's property and equipment when a subscriber's service is
terminated and a subscriber refuses to return such equipment to the
Grantee.
23.2 The City shall not permit any person who owns or controls a
residential multiple unit dwelling, trailer park, condominium,
apartment complex, subdivision or other property to interfere with the
right of any tenant, resident or lawful occupant thereof to receive
cable installation, service or maintenance from Grantee, except as
federal or state law shall otherwise require.
23.3 Upon request by Grantee, the City shall promptly exercise any
rights it may have to permit or enable Grantee to obtain or utilize
easements with respect to any residential multiple unit dwelling,
trailer park, condominium, apartment complex, subdivision or other
property as required to facilitate Grantee's use thereof for purposes
of providing system service to the tenants, residents or lawful
occupants thereof. In any such proceeding, the restitution to the Owner
for the amount of space utilized by the system, considering the
enhanced value to the premises resulting from the installation of cable
television facilities, shall be a one-time charge of $1.00 per dwelling
unit.
24 NONDISCRIMINATION IN EMPLOYMENT
The Grantee shall neither refuse to hire nor discharge from employment nor
discriminate against any person in compensation, terms, conditions, or
privileges of employment because of age, sex, race,
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 16
color, creed, or national origin. The Grantee shall insure that employees are
treated without regard to their age, sex, race, color, creed or national origin.
25 GRANTEE MAY ISSUE RULES
The Grantee shall have the authority to issue such rules, regulations, terms and
conditions of its business as shall be reasonably necessary to enable it to
exercise its rights and perform its services under this Ordinance and the Rules
of the FCC, and to assure uninterrupted service to each and all of its
subscribers. Such rules and regulations shall not be deemed to have the force of
law.
26 SEVERABILITY OF ORDINANCE PROVISIONS
If any section of this Ordinance or the franchise, or any portion thereof, is
held invalid or unconstitutional by any court of competent jurisdiction or
administrative agency, such decision shall not affect the validity of the
remaining portions of the Ordinance or franchise.
27 EFFECTIVE DATE
This ordinance shall become effective upon the date of its adoption by the City.
Any failure by the City to follow proper procedures under state or local law in
adopting this Ordinance or granting a franchise shall not abrogate the rights or
obligations of either the Grantee or the City under this Ordinance. If,
following adoption of this Ordinance it is subsequently determined that proper
legal procedures have not been followed by the City, it shall be the
responsibility of the City to rectify any procedural defects and ratify the
terms of this Ordinance.
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 17
PASSED AND APPROVED by the City Council of Litchfield this 10th day of
February 2000.
BY: /s/ [SIG]
--------------------------------------------
Title:
ATTEST: /s/ [SIG]
--------------------------------------------
Title: City Clerk
ACCEPTED BY Enstar Income Program II-1.
BY: /s/ [SIG]
--------------------------------------------
Title: Sr. V.P. Operations Central Region
ATTEST: /s/ Deanne Porter
--------------------------------------------
Title: Executive Assistant
Litchfield, IL Cable TV Franchise Ordinance
January 3, 2000
Page 18