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EXHIBIT 10.17
ORDINANCE NUMBER 2544
CABLE TELEVISION ORDINANCE
CITY OF TAYLORVILLE, ILLINOIS
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TABLE OF CONTENTS
Sec. 1. Short title 1
Sec. 2. Intent and purposes 1
Sec. 3. Definitions 2
Sec. 4. Grant of authority; Franchise required 9
Sec. 5. Franchise characteristics 9
Sec. 6. Franchisee subject to other laws, police power 10
Sec. 7. Interpretation of Franchise terms 11
Sec. 8. Applications for grant, renewal, modification
or transfer of Franchises 11
Sec. 9. Grant of Franchises 16
Sec. 10. Insurance; surety; indemnification 18
Sec. 11. Security fund 19
Sec. 12. Minimum facilities and services 21
Sec. 13. Franchise fee 23
Sec. 14. Reports and records 25
Sec. 15. Customer service requirements 28
Sec. 16. Cable service and repair standards 31
Sec. 17. Billing 34
Sec. 18. Refunds and credits 34
Sec. 19. Subscriber's right upon failure of service 35
Sec. 20. Notification Procedures 36
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Sec. 21. Reports to the grantor 37
Sec. 22. Identification of employees 38
Sec. 23. Compliance procedure 38
Sec. 24. Review by the grantor 39
Sec. 25. Escrow account 40
Sec. 26. Verification of compliance 40
Sec. 27. Noncompliance with standards 40
Sec. 28. Discrimination prohibited 41
Sec. 29. Use of right-of-ways 41
Sec. 30. Subscriber privacy and unauthorized reception 43
Sec. 31. Technical standards 44
Sec. 32. Enforcement remedies 45
Sec. 33. Renewal of Franchise 46
Sec. 34. Transfers 50
Sec. 35. Revocation or termination of Franchise 52
Sec. 36. Arbitration 54
Sec. 37. Continuity of service mandatory 55
Sec. 38. Unlawful solicitation or acceptance of gifts 56
Sec. 39. Rates 57
Sec. 40. Access facilities 69
Sec. 41. Cable advisory committee 71
Sec. 42. Performance evaluation 72
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Sec. 43. Administration 73
Sec. 44. Applicability 73
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AN ORDINANCE OF THE CITY OF TAYLORVILLE, ILLINOIS TO PROVIDE FOR THE
REGULATION OF CABLE TELEVISION WITHIN THE CITY
BE IT ORDAINED by the City Council of the City of Taylorville, Illinois as
follows:
Sec. 1. Short title.
This ordinance shall be known and may be cited as the "Taylorville
Cable Television Ordinance."
Sec. 2. Intent and purposes.
It is the intent of the City to promote the public health, safety, and
general welfare by providing for the grant of one or more Franchises for the
construction and operation of a cable system; to provide for the regulation of
each cable system; to provide for the regulation of each cable system by the
City; to provide for the payment of fees and other valuable consideration by a
Franchisee to the City for the privilege of using the public rights-of-way for
constructing and operating a cable system; to promote the availability of cable
service to City residents; to encourage the development of cable as a means of
communication between and among the members of the public and public
institutions; to encourage the development of competitive cable services; and
to encourage the provision of diverse information to the community over cable.
Sec. 3. Definitions.
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For the purpose of this Ordinance the following words and their
derivations have the meanings defined below. Words not defined herein are
given their meaning in Section 602 of the Cable Act (as hereinafter defined),
47 U. S. C. Section 522, and, if none, their common and ordinary meaning. 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 words "must" or "shall" are
mandatory and the word "may" is permissive.
(a) Access Channel means any channel set aside for public use,
educational use or governmental use without a charge by the Franchisee for
channel usage.
(b) Application means a proposal to construct and operate a cable
system within the City, transfer a Franchise, renew a Franchise, or modify a
Franchise. An application includes the initial proposal plus all subsequent
amendments or supplements to the proposal and relevant correspondence.
(c) Basic Cable Rates means the monthly charges for a subscription
to the Basic Service Tier and the associated equipment.
(d) Basic Service Tier means a separately available service tier
to which subscription is required for access to any other tier of service,
including as a minimum, but not limited to, all Must-Carry Signals, all PEG
channels, and all domestic television signals other than superstations.
(e) Benchmark means a per channel rate of charge for cable service
and associated equipment which the FCC has determined is reasonable.
(f) Cable Act means the Cable Communications Policy Act of 1984,
47 U.S.C. Section 521 et seq.
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(g) Cable Act of 1992 means the Cable Television Consumer
Protection Competition Act of 1992.
(h) Cable Operator means any person or group of persons:
(1) who provide any Cable service over a Cable System and
directly or through one or more affiliates owns a significant interest in such
a Cable System; or
(2) who otherwise controls or is responsible for, through any
arrangement, the management and operation of such cable system.
(i) Cable Service means the one-way transmission of video or other
programming service to Subscribers together with any Subscriber interaction
provided in connection with such service.
(j) Cable System means 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 City.
Such term does not include (1) a facility that serves only to retransmit the
television signals of one (1) or more television broadcast stations; (2) a
facility that serves only Subscribers in one (1) or more multiple unit
dwellings under common ownership, control, or management, unless such facility
uses any public right-of-way; (3) a facility of a common carrier that is
subject, in whole or in part, to the provisions of Title II of the
Communications Act of 1934, 47 U.S.C. Section 201 et seq., except that such
facility will be considered a cable system to the extent it is used in the
transmission of video programming directly to Subscribers; or (4) any
facilities of any electric utility used solely for operating its electric
utility systems.
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(k) Channel means a unit of Cable Service identified and selected
by a channel number or similar designation.
(l) City means Taylorville, Illinois, in its present incorporated
form or in any form which may subsequently be adopted.
(m) City Clerk means the administrative officer of their City or
designee.
(n) Control of a Franchisee or Applicant means the legal or
practical ability to direct the affairs of the Franchisee or applicant either
directly or indirectly, whether by contractual agreement or majority ownership
of an economic interest.
(o) Cost of Service Showing means a filing in which the Cable
Operator attempts to show that the benchmark rate or the Price Cap is not
sufficient to allow the Cable Operator to fully recover the cost of providing
the Basic Service Tier and to continue to attract capital.
(p) Council means the City Council that is the legislative body of
the City.
(q) Fair Market Value means the price that a willing buyer would
pay to a willing seller for a going concern based on the system valuation
prevailing in the industry at the time but with no value allocated to the
Franchise itself.
(r) FCC means the Federal Communications Commission.
(s) Franchise means the right granted by the City to a Franchisee
to construct, maintain and operate a Cable System over, on, or under streets,
roads and all other public ways, easements and right-of-way within all or
specified areas of the City. The term does not include any license or permit
that may be required by other laws, ordinances or regulations of the City for
the privilege of transacting and carrying on a business within the City or for
disturbing the surface of any street or public thoroughfare.
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(s) Franchise Agreement means a contract entered into in
accordance with the provisions of this subtitle between the City and a
Franchisee that sets forth the terms and conditions under which the Franchise
will be exercised.
(t) Franchisee means any person granted a Franchise pursuant to
this ordinance and who operates a Cable System within the City of Taylorville,
Illinois pursuant to a Franchise Agreement with the City of Taylorville,
Illinois.
(u) Gross Revenues means all revenues derived by a Franchisee, or
an affiliated entity, from the operation of its cable system within the City,
including, but not limited to, revenues derived from Cable Service, home
shopping channels, institutional services, rental or lease of equipment,
installation fees or ancillary services.
(v) Initial Basic Cable Rates means the rates that the Cable
Operator is charging for the Basic Service Tier, including charges for
associated equipment, at the time the City notifies the Cable Operator of the
City's qualification and intent to regulate Basic Cable Rates.
(w) Leased Access Channel means a Channel designated in
accordance with Section 612 of the Cable Act, 47 U.S.C. Section 532, for
commercial use by persons unaffiliated with the Franchisee.
(x) Must-Carry Signal means the signal of any local broadcast
station except superstations which is required to, be carried on the Basic
service Tier.
(y) Normal Business Hours means 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 night per
week and/or some weekend hours.
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(z) Normal Operating Conditions means those service conditions
which are within the control of the Franchisee. Those conditions which are not
within the control of the Franchisee 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 Cable Operator 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.
(aa) Outage means a SERVICE INTERRUPTION which affects not less
than 250 subscribers.
(bb) Peg Channel means the Channel capacity designated for public,
educational, or governmental use, and facilities and equipment for the use of
that Channel capacity.
(cc) Person means any individual, corporation, partnership,
association, joint venture or organization of any kind and the lawful trustee,
successor, assignee, transferee or personal representative thereof.
(dd) Price Cap means the ceiling set by the FCC on future increases
in Basic Cable Rates regulated by the City, based on a formula using the GNP
fixed weight price index, reflecting general increases in the cost of doing
business and changes in overall inflation.
(ee) Reasonable Rates Standard means a per Channel rate that is at,
or below, the Benchmark or Price Cap level.
(ff) Service Interruption means loss of picture or sound on one or
more Channels.
(gg) Standard Installation means installations that are located up
to 125 feet from the existing distribution system.
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(hh) Subscriber means any person, firm or other entity who or which
subscribes to, for any purpose, a service provided by the Cable Operator by
means of or in connection with the Cable System.
(ii) Superstation means any non-local broadcast signal secondarily
transmitted by satellite.
(jj) System malfunction means an equipment or facility failure that
results in the loss of satisfactory service on one or more Channels. A
malfunction is major if renders unviewable two (2) or more Channels carrying
off-the-air television signals, or a total of five (5) Channels regardless of
the signals carried, and it affects five (5) or more Subscribers.
(kk) Transfer of a Franchise means any transaction in which (1) an
ownership or other interest in a Franchisee is transferred from one Person or
group of Persons to another Person or group of Persons so that control of the
Franchisee is transferred, or (2) the rights held by the Franchisee under a
Franchise Agreement are transferred or assigned to another Person or group of
Persons. A transfer is pro forma if it involves no significant change in the
ultimate Control of the Franchisee.
Sec. 4. Grant of authority; Franchise required.
The City may grant one or more Franchises in accordance with this
Ordinance. No person may construct or operate a Cable System in the City
without a current and valid Franchise granted by the City.
Sec. 5. Franchise Characteristics.
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(a) A Franchise authorizes use of the public rights of way for
installing and maintaining cable, wires, lines, and other facilities to operate
a cable system within the City, but does not expressly or implicitly authorize
the Franchisee to provide service to, or install cables, wires, lines, or any
other equipment or facilities upon private property without owner consent
(except for use of compatible easements pursuant to 47 U.S.C.
Section 541(a)(2)), or to use publicly or privately owned utility poles or
conduits without a separate agreement with the owners.
(b) A Franchise is nonexclusive and will not expressly or
implicitly preclude the issuance of other Franchises to operate cable systems
within the City or affect the City's right to authorize use of public
rights-of-way to other persons as it determines appropriate.
(c) A Franchise conveys no property right to the Franchisee or
right to renewal other than as may be required by state or federal law.
(d) A Franchise Agreement constitutes a contract between the
Franchisee and the City once it is accepted by the Franchisee. A Franchisee
contractually commits itself to comply with the terms, conditions and
provisions of the Franchise Agreement and with all applicable laws, ordinances,
codes, rules, regulations, and orders.
Sec. 6. Franchisee subject to other laws, police power.
(a) A Franchisee is subject to and must comply with all applicable
local, City, state and federal laws, ordinances, codes, rules, regulations, and
orders. A Franchisee is also subject to the City's police power in accordance
with Illinois law.
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(b) A Franchisee or other person may not be excused from complying
with any of the terms and conditions of this Ordinance or a Franchise Agreement
by any failure of the City, upon one or more occasions, to require compliance
or performance.
(c) The City may, on its own motion or at the request of an
applicant or Franchisee for good cause shown, waive any requirement of this
Ordinance.
Sec. 7. Interpretation of Franchise terms.
(a) The provisions of this Ordinance will apply to a Franchise
Agreement as if fully set forth in the Franchise Agreement. The express terms
of this Ordinance will prevail over conflicting or inconsistent provisions in a
Franchise Agreement.
(b) The provisions of a Franchise Agreement will be liberally
construed in order to effectuate its purposes and objectives consistent with
this Ordinance and the public interest.
(c) A Franchise Agreement will be governed by and construed in
accordance with the laws of the State of Illinois.
Sec. 8. Applications for grant, renewal, modification or transfer of
Franchises.
(a) An application must be filed with the City for grant of a new
Franchise, renewal of a Franchise under either the formal or informal
procedures in accordance with Section 626 of the Cable Act, 47 U.S.C. Section
546, modification of a Franchise Agreement, or a transfer of a Franchise. An
applicant has the burden to demonstrate compliance with all requirements of
this Ordinance and of federal Law.
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(b) To be acceptable for filing, an application must be submitted
in the number of copies required by the City, be accompanied by the application
filing fee where required, conform to any applicable request for proposals, and
contain all required information. All applications must include the names and
addresses of persons authorized to act on behalf of the applicant with respect
to the application.
(c) All applications accepted for filing must be made available by
the City for public inspection. The City shall advertise the receipt of all
accepted applications in accordance with standard procedure.
(d) An application of the grant of a new Franchise may be filed
pursuant to a request for proposals issued by the City or on an unsolicited
basis. The City, upon receipt of an unsolicited application, may issue a
Request for proposals. If the City elects to issue a request for proposals
upon receipt of an unsolicited application, the applicant may submit an amended
application in response to the request for proposals, or may inform the City
that its unsolicited application should be considered in response to the
request for proposals, or may withdraw its unsolicited application. An
application which does not conform to the requirements of a request for
proposals may be considered non-responsive and returned.
(e) An application for the grant of a new Franchise must contain,
at minimum, the following information:
(1) Name and address of the applicant and identification
of the ownership and control of the applicant, including: the names and
addresses of the ten (10) largest holders of an ownership interest in the
applicant, and all known persons with five percent (5%) or more ownership
interest; the persons who control the applicant; all officers and directors of
the
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applicant; and any other business affiliation and cable system ownership
interest of each named person;
(2) An indication of whether the applicant, or any person
controlling the applicant, or any officer or major stockholder of the
applicant, has been adjudged bankrupt, had a Franchise Agreement revoked, or
not renewed, or been found guilty by any court or administrative agency of a
violation of a security or antitrust law, or a felony, or any crime involving
moral turpitude; and, if so, identification of any such person or entity and a
full explanation of the circumstances;
(3) A demonstration of the applicant's technical, legal
and financial ability to construct and operate the proposed cable facility,
including identification of key personnel;
(4) A description of applicant's prior experience in
cable operations and identification of communities in which applicant or its
principals have, or had, a cable Franchise or an interest therein, including
the identification of litigation involving any such Franchisees and their
Franchising authorities;
(5) A detailed description of the physical facility
proposed, including Channel capacity, technical design, performance
characteristics, headend, and access facilities to be provided to satisfy the
requirements of Section 31;
(6) A description of the construction of the proposed
system, including an estimate of above-ground and below-ground mileage and its
location, the proposed construction schedule, a description, where appropriate,
of how services will be converted from existing facilities to new facilities,
and information on the availability of space on poles and conduits
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including, where appropriate, an estimate of the cost of rearrangement of
facilities to accommodate such use;
(7) A description of the services to be provided
initially, including all broadcast and non-broadcast signals to be carried and
all non-television services, and if services will be offered by Tiers,
identification of the signals and\or services to be included on each Tier;
(8) The proposed rate structure including charges for
each Service Tier, installation, converters, and other equipment or services;
(9) A demonstration of how the proposal will reasonably
meet the future cable-related needs and interests of the community, including a
description of how the proposal will meet the needs described in any recent
community needs assessment conducted for the City;
(10) Pro forma financial projections for the first three
(3) years of the Franchise term, including statement of income, balance sheet,
sources and uses of funds, and schedule of capital additions, with all
significant assumptions explained in notes or supporting schedules;
(11) An affidavit of the applicant or authorized officer
certifying the truth and accuracy of the information in the application, and
acknowledging the enforceability of application commitments, and certifying
that the proposal meets all federal and state requirements; and
(12) Any other information necessary to demonstrate
compliance with the requirements of this ordinance and information that the
City may request of the applicant.
(f) An application for modification of a Franchise must include,
at minimum, the following information:
(1) The modification requested;
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(2) The justification for the requested modification,
including the impact of the requested modification on Subscribers and others,
and the impact on the applicant if the modification is not approved;
(3) A statement whether the modification is sought
pursuant to Section 625 of the Cable Act, 47 U.S.C. Section 545, and, if so, a
demonstration that the requested modification meets the legal standards of 47
U.S.C. Section 545; and
(4) Any other information necessary for the City to make a determination.
(g) An application for renewal of a Franchise must comply with the
requirements of section 33.
(h) An application of approval of a transfer of a Franchise must
comply with the requirements of Section 34.
(i) To be acceptable for filing an application must be accompanied
by a filing fee in the following amount, as appropriate:
For a new Franchise: $10,000
For renewal of a Franchise: $ 4,000
For a transfer of a Franchise
(other than a pro forma transfer): $ 2,000
For a modification of a Franchise
pursuant to U.S.C. Section 545 $ 3,000
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Sec. 9. Grant of Franchises.
(a) The City may grant a Franchise for a term not to exceed ten
(10) years to serve the City, however, nothing herein shall be construed to
prevent the granting of renewal options the total of which, when added to the
initial term of the Franchise, would exceed ten (10) years.
(b) The City may make the grant of a Franchise conditioned upon
the completion of construction within a prescribed time or upon the performance
of other specific obligations, specifying in the Franchise Agreement that
failure to timely comply with the condition will cause the Franchise to become
subject to revocation or termination as provided hereinafter.
(c) The evaluating an application for a new Franchise, the City
shall consider the applicant's character; the applicant's technical, financial,
and legal qualifications to construct and operate the proposed system; the
nature of the proposed facilities, equipment, and services; the applicant's
record in other communities; if any, and whether the proposal will meet
anticipated community needs and serve the public interest.
(d) Based upon the application, the written and oral testimony and
other material presented at a public hearing before the Council, and any other
information relevant to the application, the Council shall decide whether to
grant or deny a Franchise application.
(e) If the Council grants a Franchise application, the City
Attorney and the applicant must agree on the terms of a Franchise Agreement
within ninety (90) calendar days from the date of the resolution making the
grant. This period may be extended for good cause by the Council. If
agreement is not reached with the City Attorney within ninety (90) calendar
days or if the period is not extended by the Council, the Franchise grant will
be null and void without further action by the City.
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(f) The text of a proposed Franchise Agreement must be made
available by the City to the public and advertised as required by City
procedure and/or applicable state law.
(g) After complying with the requirements of subsections (c) - (f)
above, the Council shall, following a public hearing, approve or disapprove the
proposed Franchise Agreement by resolution.
(h) Prior to the Franchise becoming effective, the approved
applicant must demonstrate compliance with the surety, insurance and similar
provisions of the Franchise Agreement.
Sec. 10. Insurance; surety; indemnification.
(a) Unless a Franchise Agreement specifies otherwise, the
following insurance coverage shall be in force at all times during the
Franchise period: workmen's compensation insurance to meet all state
requirements; and general comprehensive liability insurance with respect to the
construction, operation and maintenance of a Cable System, including the
operation of motor vehicles, in the following minimum amounts:
(1) For bodily injury, including death, $1,000,000 for any
person, and $5,000,000 for any one accident;
(2) For property damage $1,000,000; and
(3) For damages resulting from any liability of any nature
that may arise from or be occasioned by operation of the Cable System,
including any communication over the Cable System, excepting programming on
government Channels, $2,000,000.
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(b) All insurance policies must be with sureties qualified to do
business in Illinois and in form approved by the City Attorney. The City may
require in a Franchise Agreement coverage and amounts in excess of the above
minimums.
(c) A Franchisee must, at its sole cost and expense, indemnify,
hold harmless, and defend the City, its officials, boards, commissions, agents
and employees, against any and all claims, suits, causes of action, proceedings
and judgments for damages or equitable relief arising out of the construction
maintenance or operation of its Cable System regardless of whether the act or
omission complained of is authorized, allowed or prohibited by the Franchise
Agreement. This provision includes, but is not limited to, claims arising out
of copyright infringements or a failure by the Franchisee to secure consents
from the Owners, authorized distributors, or licensees of programs to be
delivered by the Cable System.
(d) The Franchise Agreement may require the Franchisee to have in
force at all times a performance bond or an irrevocable letter of credit in an
amount as necessary to ensure faithful performance by the Franchisee of its
obligation under the Franchise Agreement. Such surety instruments must be
provided by an entity qualified to do business in the State of Illinois and in
a form approved by the City Attorney.
Sec. 11. Security fund.
(a) Prior to the Franchise becoming effective, the Franchisee must
post with the City a cash security deposit, in such form as the City, in its
sole discretion shall determine, in the minimum amount of $25,000 or such other
amount as specified in the Franchise Agreement to be used as a security fund to
ensure the faithful performance of all provisions of law and the
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Franchise Agreement and compliance with all orders, permits and directions of
the City, and the payment by the Franchisee of any claims, liens or taxes due
the City which arise by reason of the construction, operation or maintenance of
the system.
(b) The City shall place the security deposit in an interest
bearing account. The interest will accrue to the benefit of the Franchisee but
may not be withdrawn; all interest will be added to and become part of the
original security fund during the term of the Franchise.
(c) If a Franchisee fails to pay the City any fees or taxes due,
liquidated damages, damages, or costs or expenses incurred by the City by
reason of any act or default of the Franchisee, or if the Franchisee fails to
comply with any provision of the Franchise Agreement that the City reasonably
determines can be remedied by an expenditure of the security fund, the City
may, withdraw that amount with any interest from the security fund. Prior to
such withdrawal, the City shall provide notice to the Franchisee of the
intention to withdraw, the reason for such withdrawal, the amount to be
withdrawn and the intended date of such withdrawal. Such notice shall be
provided not less than ten (10) days prior to the intended date of withdrawal.
(d) If the Franchisee objects to such withdrawal, it shall give
written notice as provided in the Franchise Agreement postmarked prior to the
date of such withdrawal and request arbitration of the withdrawal pursuant to
Section 36 hereof.
(e) Within thirty (30) calendar days after notice to it that an
amount has been withdrawn by the City from the security fund, the Franchisee
must deposit a sum of money sufficient to restore the security fund to the
original amount. If the Franchisee fails to restore the security fund to the
original amount within thirty (30) calendar days, the entire security fund
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remaining may be forfeited and/or such failure may be considered a material
breach of this Ordinance and may be used as grounds for revocation of the
Franchise.
(f) The security fund will become the property of the City in the
event the Franchise is revoked. The Franchisee is entitled to the return of
the security fund that remains following termination of the Franchise, less any
outstanding default or unpaid amounts owed to the City by the Franchisee.
(g) The rights reserved to the City with respect to the security
fund are in addition to all other rights of the City whether reserved by this
Ordinance or authorized by other law, and no action, proceeding or exercise of
a right with respect to such security fund will affect any other right the City
may have.
(h) If the City is convinced that its interests can be comparably
protected by a surety device other than a security fund, a Franchise Agreement
may specify such alternative device and set for the terms and conditions of its
use.
Sec. 12. Minimum facilities and service.
(a) The following minimum requirements for facilities and services
apply to all Franchises. The City may require that a Franchise exceed these
minimum requirements.
(1) A Cable System constructed or rebuilt after the
effective date of this Ordinance must have a minimum capacity of seventy two
(72) video Channels available for immediate or potential use and have the
capability for two-way communications.
(2) A Cable System may be required to provide one more
access Channels for public, educational or governmental access. In addition,
the City may require a Franchisee to
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reserve one or more additional Channels for present or future access use. If
the City determines that the use of existing access facilities warrants the
activation of such reserve Channels, the Franchisee shall activate them upon
ninety (90) days notice from the City. The City may require in a Franchise
Agreement that the Franchisee contribute to capital costs for access studios
and related equipment and facilities.
(3) A Cable System must provide channel space for
programming upon request, leased access as required by federal law.
(4) Service to public buildings may be required without
charge as set forth in the Franchise Agreement.
(b) Unless a Franchise Agreement provides otherwise, a Franchisee
must make Cable Service available to every unserved non- commercial structure
within the Franchise service area. Where the Franchise service area is the
entire City, the Franchisee shall extend service to any annexed areas according
to the following schedule:
(1) For areas of territory annexed to the City of
______ acres or more, the Franchisee shall
extend service to such areas within twelve
(12) months of the date of annexation; or
(2) For those areas of less than ______ acres,
the Franchisee shall extend service to such
annexed areas within six (6) months of the
date of annexation;
provided, however, the Franchisee is not required to extend service in areas
where the cable would pass fewer than thirty (30) homes per cable mile.
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Sec. 13. Franchise fee.
(a) Unless a Franchise Agreement provides otherwise, a Franchisee,
in consideration of the privilege granted under a Franchise for the use of
public rights-of-way to construct and operate a Cable System, must pay to the
City five percent (5%) of the Franchisee's Gross Revenues derived from the
operation of its cable system within the City during the period of its
Franchise. Franchise fees are payable quarterly. A Franchisee must pay the
Franchise fee due to the City for the preceding quarter within forty five (45)
calendar days of the end of that quarter.
(b) Any payment of Franchise fees to adjust for a shortfall in the
quarterly payments for the preceding year must be made no later than the filing
date for the annual financial statements. Adjustments for any overpayment will
be credited to subsequent quarterly payments.
(c) Unless a Franchise Agreement provides otherwise, Franchisee
fee payments shall be accompanied by a financial statement showing the Gross
Revenues received by the Franchisee during the period covered by the payments
and the number of Subscribers served at the end of the period.
(d) A Franchisee must file within three (3) months of the end of
its fiscal year the Franchisee's annual financial statements for the preceding
year audited by a Certified Public Accountant or certified as accurate by the
Franchisee's Chief Financial Officer. The Franchisee will bear the cost of the
preparation of such financial statements.
(e) The City may inspect and audit any and all books and records
of the Franchisee, and recompute any amounts determined to be payable under the
Franchise. The cost of the audit will be borne by the Franchisee if the annual
payment to the City has been underpaid by more than five percent (5%) as
disclosed by the audit.
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(f) In the event that a Franchise payment is not received by the
City on or before the due date, interest will be charged from the due date at
an interest rate of one and one half percent (1 1/2%) per month. In addition,
the Franchisee will pay a late charge of five percent (5%) of the amount of
such payment. Interest and late charges will not be imposed for any payment
necessary as a result of the yearly adjustment provided for in subsection (b)
above, if the payment to correct for a shortfall does not exceed ten percent
(10%) of the total payments made during the year. In the event such payment
exceeds ten percent (10%) of the total payments made during the year, the
Franchisee will be liable for interest and late charges for the entire amount
due.
(g) When a Franchise terminates for whatever reason, the
Franchisee must file with the City within ninety (90) calendar days of the date
its operations cease a financial statement, audited by a CPA or certified by
the Franchisee's Chief Financial Officer, showing the Gross Revenues received
by the Franchisee since the end of the previous fiscal year. Adjustments will
be made at that time for Franchise fees due to the date that the Franchisee's
operations ceased.
Sec. 14. Reports and records.
(a) within three (3) months of the close of its fiscal year, a
Franchisee must file with the City an annual report that includes the following
information:
(1) A summary of the previous calendar year's activities
in development of the system, including but not limited to services begun or
dropped, number of Subscribers (including gains and losses), homes passed, and
miles of cable distribution plants in service. The summary shall also include
a comparison of any construction, including system upgrades, during the year
with any projections previously provided to the City.
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(2) A financial statement, including a statement of
income, a balance sheet, and where the Franchisee is in a significant
construction phase, a statement of sources and applications of funds. The
statement shall include notes that specify all significant accounting policies
and practices upon which it is based. A summary shall be provided comparing
the current year with previous years since the beginning of the Franchise.
(3) A copy of updated maps depicting the location of all
trunks where there was construction in the year of report.
(4) A summary of complaints, identifying the number and
nature of complaints and their disposition. where complaints involve one or
more recurrent system problems, the nature of each problem and what steps have
been taken to correct it shall be identified. More detailed information on
complaints shall be submitted upon request of the City.
(5) If the Franchisee is a corporation, a list of
officers and members of the board and the officers and board members of any
parent Corporation; and where a parent Corporation's stock is publicly traded,
a copy of its most recent annual report.
(6) A list of all partners or stockholders holding five
percent (5%) or more ownership interest in the Franchisee and any parent
corporation; provided, however, when any such entity has fewer than ten (10)
persons holding five percent (5%) ownership interest, the ten (10) largest such
holders. Alternatively, the annual ownership information required by the FCC
for broadcast licensees may be supplied.
(7) A copy of all the Franchisee's commercial policies
and practices applicable to Subscribers and users of the Cable System.
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(b) A Franchisee must maintain a complete set of books and records
available for inspection upon reasonable prior notice by the City during normal
business hours.
(c) Upon written request of the Franchisee and approval by the
City Attorney, information of a proprietary nature submitted to the City
pursuant to this Ordinance or a Franchise Agreement will not be made available
for public inspection.
(d) The Franchisee shall provide to the City a copy of all filings
of the Franchisee or affiliated entity made with the Federal Communications
Commission, the Securities Exchange Commission, or other federal agency where
such filings involve matters that affect, or could affect, the operation of the
Franchised Cable System or the Franchisee Is capability to carry out its
obligations under the Franchise Agreement and this Ordinance.
(e) For the purposes of subsections a-5, 6 and 7 hereof, a
notarized statement of an officer of the Franchisee stating that no changes in
the information requested therein have occurred since the date of the last
report shall be conclusively deemed to be compliance with such subsections.
Such notarized statement shall specifically refer to those subsections which
are unchanged and shall be provided in lieu of court required therein.
Sec. 15. Customer service requirements.
(a) A Franchisee must maintain within fifty (50) miles of the City
a business office open during normal business hours with a listed local
toll-free telephone number and employ a sufficient number of telephone lines to
allow reasonable access by Subscribers and members of the public. When the
business office is closed, an answering: machine or service capable of
receiving service complaints and inquiries must be employed.
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(b) A Franchisee must have available at all times personnel,
equipment and procedures capable of locating and correcting major system
malfunction. Major system malfunctions must be corrected without delay.
Corrective action for all other malfunctions must be initiated not later than
the next business day after the Subscriber service call is received, and must
be completed as promptly as possible.
(c) A Franchisee must provide each Subscriber at the time Cable
Service is installed written instructions for placing a service call, filing a
complaint, or requesting an adjustment. Each Subscriber must also be provided
with a schedule of the Subscriber's rates and charges, a copy of the service
contract, delinquent Subscriber disconnect and reconnect procedures, and a
description of any other of the Franchisee's policies in connection with its
Subscribers.
(d) A Franchise must maintain a complete record of service
complaints received and action taken. These records must be open to the City
for inspection during normal business hours. Such records must be retained for
not less than two (2) years.
(e) Upon termination of cable service by a subscriber, a cable
system operator shall give a subscriber the opportunity to acquire the wiring
at the replacement cost, with the cost to be determined based on the
replacement cost per foot of the cabling multiplied by the length in feet of
the cable home wiring. If the subscriber declines to acquire the cable home
wiring, the cable system operator must then remove it within 30 days, or make
no subsequent attempt to remove it or to restrict its use."
(f) If warranted in the City's judgment, the City may adopt
regulations governing customer service so as to assure prompt, courteous or
responsive treatment of the public by a Cable Operator.
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(g) The Franchisee shall maintain a customer service center and
bill payment locations which provide the necessary facilities, equipment and
personnel to comply with the following customer service standards under normal
operating conditions:
(1) Sufficient trained customer service representatives
and toll-free telephone line capacity during normal business hours to assure
that calls will be answered before the fifth ring, and all callers for service
will not be required to wait in excess of thirty (30) seconds before being
connected to a service representative and if the call needs to be transferred,
transfer time shall not exceed thirty (30) seconds. Franchisee shall be deemed
in compliance with this section when the standard has been met no less than
ninety (90) percent of the time on all calls, measured on a quarterly basis.
(2) Emergency toll free telephone line capacity on a
24-hour basis, including weekends and holidays.
(3) 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.
(4) Under normal operating conditions the customer will
receive a busy signal less than three (3) percent of the time.
(5) The Franchisee will not be required to acquire
equipment or perform surveys to measure compliance with the telephone answering
standards above unless an historical record of complaints indicates a clear
failure to comply.
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(6) A customer service center and bill payment
locations, within the Franchise area, open during normal business hours and
conveniently located and adequately staffed to accept subscriber payments and
respond to service requests and complaints.
(7) An emergency system maintenance and repair staff,
capable of responding to and repairing major system malfunction on a 24-hour
basis.
(8) An installation staff, normally capable of standard
installation service to any Subscriber within seven (7) business days after the
order has been placed, in all areas where trunk and feeder cable have been
activated. In no event shall the time to install or initiate a new service
exceed thirty (30) days from the date of receipt of a request, in all areas
where trunk and feeder cable have been activated. Franchisee shall be deemed
in compliance with this section when the standard has been met no less than
ninety-five (95) percent of the time on all calls for service, measured on a
quarterly basis.
Sec. 16. Cable Service and repair standards.
(a) Franchisee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest time
possible. Scheduled interruptions, on trunk and major electronic components,
shall be preceded by notice and shall occur during periods of minimum use of
the system, preferably between midnight and 6:00 a.m.
(b) Franchisee shall maintain a written log, or an equivalent,
stored in computer memory and capable of access and reproduction in printed
form, for all service interruption; and requests for service that result in a
service call.
(c) The Franchisee shall maintain a repair force of technicians
capable of responding to Subscriber requests for service within the following
time frames:
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(1) For a system outage: within two hours including
weekend and holidays, of receiving Subscriber calls or requests for service
which identify a system outage of all Channels, affecting at least ten (10)
Subscribers of the system.
(2) For an isolated outage: Within 24 hours, including
weekend and holidays, of receiving requests for service identifying an outage
of all Channels for any Subscriber.
(3) For inferior signal quality: Within 48 hours,
including weekend and holidays, of receiving a request for service identifying
a problem concerning picture or sound quality, affecting any Subscriber.
(a) Franchisee shall be deemed to have Responded
to a request for service under the provisions of this
section when a technician arrives at the service
location and begins work on the problem or otherwise
responds to the request for service.
(b) Franchisee shall be deemed in compliance with
this section when the standard has been met no less
than ninety-five (95) percent of the time on all
calls for service, measured on a quarterly basis.
(d) Unless excused, Franchisee shall identify the nature of the
problem within 24 hours of beginning work and resolve all Cable System related
problems within five (5) business days unless technically infeasible. Failure
to resolve Cable System related problems within thirty (30) days pursuant to
this section shall be a material violation of this section.
(e) The "appointment window" alternatives for installations,
service calls, and other installation activities will be either a specific time
or, at maximum, a four-hour time block during
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normal business hours. The Franchisee may schedule service calls and other
installation activities outside of normal business hours for the express
convenience of the customer.
(f) If a customer misses a, service call,, a new date for the
repair must be given within ten (10) business days which include Monday through
Friday, 8:00 a.m., to 5:00 p.m. If an employee of the Franchisee misses a
service call, a new date for repair shall be made at the customer's convenience
and in accord with the Franchisee's business hours.
(g) A Franchisee may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled
appointment.
(h) If a Franchisee 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.
The Franchisee will initiate prompt corrective action if any is needed
to satisfy unresolved complaints. If a customer is not satisfied with the
solution of a complaint, the customer shall automatically be referred to a
management person. Local management shall work with the person to resolve the
problem within forty-eight (48) hours.
(j) Customers shall receive a copy of the service report and a
phone number to call to resolve any additional problems at the time the service
is completed.
Sec. 17. Billing.
(a) Subscribers shall receive a monthly statement with a date for
payment due.
(b) All statements shall clearly denote a postmark or initiated
date of bill.
(c) A phone number for bill adjustment shall be printed on the
statement.
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(d) The statement shall clearly state the dates of service for
which the Subscriber is being billed.
(e) Billing complaints shall be resolved within a reasonable time
but in no event shall resolution of the billing complaints exceed a maximum of
thirty (30) days from receipt of a written complaint by the Subscriber.
(f) Late payment charges and the time of institution shall be
clearly stated.
(g) Bills will be clear, concise and understandable. Bills must be
fully itemized, with itemizations including, but not limited to, 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.
Sec. 18. Refunds and credits.
(a) Refund checks will be issued promptly, but no later than
either of the following:
(1) the customer's next billing cycle following
resolution of the request or thirty (30) days, whichever is earlier, or
(2) the return of the equipment supplied by the Cable
tor if service is terminated.
(b) Credits for service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
Sec. 19. Subscriber's right upon failure of service.
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(a) In the event that all service to any Subscriber is interrupted
for forty-eight (48) or more consecutive hours except for reasons beyond the
control of the Franchisee and except in circumstances for which prior approval
of the interruption is obtained from the Franchisor, the Franchisee shall
provide a twenty (20) percent rebate of the monthly fees to affected
Subscribers upon the Subscriber's request.
(b) In the event that service to any Subscriber is interrupted for
one hundred twenty (120) or more consecutive hours, except for reasons beyond
the control of the Franchisee and except in circumstances for which prior
approval of the interruption is obtained from the Franchisor, the Franchisee
shall provide a one hundred (100) percent rebate of the monthly fees to
affected Subscribers upon the Subscriber's request.
(c) For purposes of computing the time of interrupted service,
said time shall begin when a complaint for interrupted service is received by
the Franchisee or when the Franchisee has actual or constructive notice of the
interruption.
Sec. 20 Notification procedures.
(a) The Franchisee shall, at the time service is initiated, and
thereafter, at least annually or at any time upon request, provide the customer
with written information covering:
(1) The time allowed to pay outstanding bills.
(2) Grounds for termination.
(3) Steps taken before termination.
(4) How customers may resolve billing disputes.
(5) Steps necessary to restore service.
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(6) The fact that customer service representatives and
service technicians shall identity themselves.
(7) The fact that customers have the right to speak to
a supervisor.
(8) The time frame for resolving reception and billing
problems.
(9) The appropriate regulatory authority with whom to
register a complaint and a listed phone number.
(10) The address of the regional office to whom complaints
may be forwarded in the event a customer is dissatisfied.
(11) Charges for late payment or returned checks.
(12) Products and services offered.
(13) Prices and options for programming services and
conditions of subscription to programming and other
services.
(14) Installation and service maintenance policies.
(15) Instructions on how to use the Cable Service.
(16) Channel positions of programming carried on the
system.
(b) Subscribers will be notified of any changes in rates,
programming services or Channel positions as soon as possible through
announcements on the Cable System and in writing. Notice must be given to
Subscribers a minimum of thirty (30) days in advance of such changes if the
change is within the control of the Cable Operator. In addition, the Cable
operator shall notify Subscribers thirty (30) days in advance of any
significant changes in the other information required in subsection (1) above.
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Sec. 21. Reports to the Franchisor.
(a) The Franchisee shall notify the Franchisor of the resolution
of all complaints received by the Franchisor on a semi-annual basis, or upon
earlier written request of Franchisor, information shall be provided within
five (5) business days.
(b) The Franchisee shall notify the Franchisor of all outages,
system malfunctions & service interruptions location of the occurance, and the
homes affected on a semi-annual basis, or upon earlier written request of
Franchisor, information shall be provided within five (5) business days.
(c) Upon the request of the Franchisor, the Franchisee shall make
a written report of an Outage within the Franchise area within 48 hours.
(e) The Franchisee shall notify the Franchisor through a
semi-annual report, or upon earlier written request of Franchisor, information
shall be provided within five (5) business days, giving a breakdown during
normal business hours of phone statistics on all phone lines for customer
service and repair.
Sec. 22. Identification of employees.
(a) Every officer, agency or employee of the Franchisee or its
contractors or subcontractors shall wear on their outer clothing an
identification card bearing their name and photograph. Franchisee shall account
for all identification cards at all times. Every service vehicle of the
Franchisee shall be clearly identified on sight to the public as working for
the Franchisee.
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Sec. 23. Compliance procedure.
(a) Franchisee shall establish written procedures for receiving,
acting upon and resolving Subscriber complaints without intervention by the
Franchisor The written procedures shall prescribe the manner in which a
Subscriber may submit a complaint whether orally or in writing specifying the
Subscriber's grounds for dissatisfaction. These procedures shall comply with
all standards and specifications of this chapter. Franchisee shall file a copy
of these procedures with the Franchisor.
Sec. 24. Review by the Franchisor.
(a) The Franchisor may determine, de novo, upon a review of a
Subscriber complaint and the Franchisee's decision, if any whether further
action is warranted. In the event the Franchisor does not initiate further
proceedings within fifteen(15) days of the filing of the complaint, the
Franchisee's proposed action or resolution shall be final. If the Franchisor
decides to initiate further investigation, the franchisor shall allow the
Franchisee and the Subscriber to submit, within ten (10) days of notice
thereof, a written statement of the facts and arguments in support of their
respective positions. The Franchisee or the Subscriber may request in such
statement that a hearing be conducted by the Franchisor. Franchisor shall give
notice in writing of the time and place for such hearing. The hearing shall be
conducted informally, and the parties may offer any evidence pertinent to the
dispute. The parties shall provide any additional evidence including testing
reports from the Franchisee, which the franchiser may deem necessary to an
understanding and determination of the dispute. The Franchisor shall issue a
written decision within fifteen (15) days of receipt of the written statements,
or if a hearing is requested, within
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fifteen (15) days of receipt of the written statements, or if a hearing is
requested, within fifteen (15) days of the conclusion of the hearing, setting
forth the basis of the decision.
Sec. 25. Escrow account.
(a) The Franchisor may establish an escrow account wherein a
Subscriber may deposit a disputed portion of the Subscriber's monthly service
charge. If a Subscriber either continues to make full and timely payment of
all monthly service charges to Franchisee or deposits any disputed portion of
such monthly service charges into said escrow account, Franchisee shall not
discontinue service during the pendency of a complaint submitted under the
provisions of this chapter. Any amount deposited in the escrow account shall
be paid to the Franchisee or Subscriber in accordance with a final
determination of a complaint.
(b) Franchisee shall advise all Subscribers, in writing, of these
escrow provisions.
Sec. 26. Verification of compliance.
Upon five (5) business days' notice, the Franchisee shall establish
its compliance with any or all of the standards required in this ordinance.
The Franchisee shall provide sufficient documentation to permit the Franchisor
to verify the compliance.
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Sec. 27. Noncompliance with standards.
(a) A repeated and verifiable pattern of noncompliance with the
consumer protection standards of this ordinance after Franchisee's receipt of
due notice and an opportunity to cure, may termed a material violation of this
chapter. Franchisor, at its option, may direct Franchisee to add sufficient
personnel and/or telephone lines and related equipment to insure compliance.
Franchisor reserves the right to utilize any other lawful remedy as well.
Sec. 28. Discrimination prohibited.
(a) Unless approved by the City and to the extent consistent with
federal law, no Franchisee may in its rates or charges, or in the availability
of the services or facilities of its system, or in any other respect, make or
grant undue preferences or advantages to any Subscriber or potential Subscriber
to the system, or to any user or potential user of the system, nor subject any
such persons to any undue prejudice or any disadvantage.
(b) A Franchisee must not deny Cable Service to any potential
subscribers because of the income of the residents of the area in which the
Subscribers reside.
Sec. 29. Use of right-of-ways.
(a) A Franchisee must utilize, with the owner's permission,
existing poles, conduits or such other facilities whenever possible. Copies of
agreements for use of poles, conduits or other facilities must be filed with
the City upon City request.
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(b) All transmission lines, equipment and structures must be
installed and located to cause minimum interference with the rights and
reasonable convenience of property owners. The City may from time-to-time
issue such reasonable rules and regulations concerning the installation and
maintenance of the Cable System installed in the public rights-of-way as may be
consistent with this ordinance and the Franchise Agreement.
(c) Suitable safety devices and practices as required by local,
City, state and federal laws, ordinances, regulations and permits must be used
during construction, maintenance and repair of a Cable System.
(d) A Franchisee must remove, replace or modify at its own expense
the installation of any of its facilities within any public right-of-way when
required to do so by the City to allow it to change, maintain, repair or
improve a public thoroughfare.
(e) On streets and roads where electrical and telephone utility
wiring are located underground, either at the time of initial construction or
subsequently, the cable must also be located underground at the Franchisee's
expense. Between a street or road and a Subscriber's residence, the cable must
be located underground if electrical and telephone utility wiring are located
underground. If electric or telephone utility wiring is aerial, a Franchisee
may install aerial cable except where a property owner or resident requests
underground installation and agrees to bear the additional cost over aerial
installation.
(f) A Franchisee must obtain any required permits before causing
any damage or disturbance to public thoroughfares or private property as a
result of its construction or operations and must restore to their former
condition such private property and public thoroughfares, the latter in a
manner approved by the City. If such restoration is not satisfactorily
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performed within a reasonable time, the City, or the property owner in the
case of private property may, after prior notice to the Franchisee, cause the
repairs to be made at the expense of the Franchisee.
(g) A Franchisee may trim trees within public rights-of-way at
its own expense as necessary to protect its wires and facilities, subject to
any direction that may be provided by the City. Trees on private property may
be trimmed with the consent of the property owner.
(h) At the request of any person holding a valid building moving
permit and upon sufficient notice, the Franchisee must temporarily raise, lower
or cut its wires as necessary to facilitate such move upon not less than 72
hours advance notice. The direct expense of such temporary changes, including
standby time, must be paid by the permit holder and the Franchisee may require
payment in advance.
Sec. 30. Subscriber privacy and unauthorized reception.
(a) A Franchisee must protect the privacy of all Subscribers
pursuant to the provisions of Section 631 of the Cable Act, 47 U.S.C. Section
551. A Franchisee must not condition Subscriber service on the Subscriber's
grant of permission to disclose information which, pursuant to federal law,
cannot be disclosed without the Subscriber's explicit consent.
(b) It is unlawful for any person to intercept or use any video,
voice, or data signal transmissions over a Cable System, unless such
interception or use is authorized by the Franchisee or other person having the
lawful right to authorize the reception or use.
Sec. 31. Technical standards.
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(a) Any Cable System constructed within the City must meet or
exceed technical standards consistent with this ordinance, the Franchise
Agreement, and the Franchisee's application. The system must be capable of
delivering all National Television Systems Committee (NTSC) color and
monochrome standards signals and designed to provide picture quality of TASO
grade 2 or better and superior reliability. All television signals transmitted
on a Cable System must include any closed captioning information for the
hearing impaired. Antennas, supporting structures, and outside plant used in
the system must be designed to comply with the recommendations of the
Electronics Industries Association on tower structures and outside plant.
(b) All construction, installation and maintenance must comply
with the National Electrical Safety Code, the National Electric Code, the
standards of the Occupational Safety and Health Administration, all state and
local regulations, and good and accepted industry practices. Close
coordination with public and private utilities or any other Cable Operator in
the area, and the use of accepted practices and procedures, is required to
avoid damage or adverse impact on existing or planned facilities.
(c) At the stages of any construction specified in the Franchise
Agreement, the Franchisee must perform at its expense proof of performance
tests designed to demonstrate compliance with the requirements of this
Ordinance, the Franchise Agreement, and FCC requirements. The Franchisee must
provide the proof of performance test results promptly to the City.
(d) The Franchisee shall provide to the City copies of all "proof
of performance" tests reports filed by the Franchisee with the Federal
Communications Commission.
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(e) The Franchisee must advise the City when a proof of
performance test is scheduled so that the City may have an observer present.
(f) A Franchisee must not design, install or operate its
facilities in a manner that will interfere with the signals of any broadcast
station, the electrical system located in any building, the cable system of
another Franchisee, or individual or master antennas used for receiving
television or other broadcast signals.
Sec. 32. Enforcement remedies.
(a) The City has the right to apply any one or combination of the
following remedies in the event a Franchisee violates any provision of the law
or its Franchise Agreement:
(1) Impose liquidated damages in such amount, whether per
day, incident, or other measure of violation, as provided in the Franchise
Agreement. Payment of liquidated damages by the Franchisee will not relieve
the Franchisee of its obligation To meet the Franchise requirements.
(2) Reduce the duration of the Franchise on such basis as
the City determines is reasonable pursuant to the process specified in Section
35.
(3) Revoke the Franchise as provided for in Section 35.
(b) In determining which remedy or remedies are appropriate, the
City must take into consideration the nature of the violation, the person or
persons bearing the impact of the violation, the nature of the remedy required
in order to prevent further violations, and such other matters as the City
determines are appropriate. The City shall not impose any remedy without first
giving the Franchisee notice of the violation and a reasonable opportunity to
cure it.
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(c) In addition to or instead of any other remedy, the City may
seek legal or equitable relief from any court of competent jurisdiction.
Sec. 33. Renewal of Franchise.
(a) If a Franchisee decides to initiate a formal Franchise renewal
process in accordance with Section 626 (a)-(g) of the Cable Act, 47 U.S.C.
Section 546 (a)-(g), it must notify the City within 30-36 months of the
Franchise expiration date. Upon such notification, or at the City's own
initiative, the City may commence the following process:
(1) The City shall review and evaluate the future
cable-related community needs and interests and the Franchisee's past
performance. The review and evaluation process must include opportunity for
public comment.
(2) Immediately upon completion of the review and
evaluation process, the City must notify the Franchisee that it may file a
renewal application. The notice must specify the information to be included in
the renewal application and the deadline for filing the application, which must
be no earlier than sixty (60) calendar days following the date of the notice.
If the Franchisee does not submit a renewal application by the specified date,
it will be deemed not to be seeking renewal of its Franchise.
(3) Upon receipt of the renewal application, the City
shall publish notice of its receipt and may schedule one or more public
meetings or implement other procedures under which comments from the public on
the application may be received.
(b) In considering a renewal application, the City must consider
whether:
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(1) The Cable Operator has substantially complied with
the material terms of the existing Franchise and with applicable law;
(2) The quality of the Cable Operator's service,
including signal quality, response to consumer complaints, and billing
practices (but without regard to the mix, quality, or level of Cable Services
or other services provided over the system) has been reasonable in light of
community needs;
(3) The Cable Operator has the financial, legal and
technical ability to provide the services, facilities, and equipment set forth
in its proposal; and
(4) The Cable operator's proposal is reasonable to meet
the future cable related community needs and interests, taking into account the
cost of-meeting such needs and interests.
(c) The Council shall hold at least one public hearing to consider
the application. An advisory committee or a committee of the Council may make
recommendations to the Council prior to its consideration, a copy of which
recommendations shall be made available to the Franchisee in advance of the
Councils consideration. Following the public hearing on the renewal
application, the Council must either:
(1) Pass a resolution agreeing to renew the Franchise,
subject to the negotiation of a Franchise Agreement satisfactory to the City
and the Franchisee, or
(2) Pass a resolution that makes a preliminary assessment
that the Franchise should not be renewed.
(d) the Council's action under subsection (c) above must be taken
within four months of the date of the renewal application notice to the
Franchisee required in subsection (a) (2) above.
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(e) If a preliminary assessment is made that a Franchise should
not be renewed, at the request of the Franchisee or on its own initiative, the
City must commence an administrative proceeding in accordance with Section
626(c) of the Cable Act, 47 U.S.C. Section 546(c).
(f) The City shall commence an administrative proceeding,
initiated by a Hearing Order which establishes the issues to be addressed in
the hearing and the procedures to be followed and appoints a presiding officer
for the hearing. Upon the completion of the hearing, the presiding officer
shall issue a recommended decision. Parties to the hearing and the public shall
have thirty (30) calendar days to comment on the recommended decision after its
issuance.
(g) Based on the recommended decision, the comment and arguments
presented, and other evidence of record the Council, following a public
hearing, shall make a final determination on whether to grant or deny the
renewal application. The Council shall issue a written decision setting forth
the reasons for its decision.
(h) The provisions of subsections (a)-(g) above notwithstanding, a
Franchisee may submit a proposal for renewal of a Franchise in accordance with
47 U.S.C. Section 546(h). The City must hold one or more public hearings or
implement other procedures under which comments on the proposal from the public
may be received. Following such public hearings or other procedures, the
Council shall determine whether the Franchise should be renewed in the terms
and conditions of any renewal. In making its determination the Council shall
not consider the pendency of any other application for a Franchise.
(i) Once the Council grants a renewal application, the City and
the Franchisee must agree on a Franchise Agreement, pursuant to the procedures
specified in Section 9(e)-(g), before the renewal becomes effective.
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(j) If renewal of a Franchise is denied, the City may acquire
ownership of the Cable System or effect a transfer of ownership of the system
to another person upon the Agreement of the owner of the facilities and
approval of the Council. Any such acquisition by the City must be a fair
market value, determined on the basis of the Cable System valued as a going
concern but with no value allocated to the Franchise itself.
(k) If renewal of a Franchise is denied and the City does not
purchase the cable system, the City may require the former Franchisee to
remove its facilities and equipment. If the former Franchisee fails to do so
within a reasonable period of time, the City may have the removal done at the
former Franchisee's and/or surety's expense.
(l) Notwithstanding any provision of this section, the City
Council may, suspend, by majority vote at a regularly schedule meeting, the
renewal provisions contained herein and direct the Mayor or a committee to be
appointed by the mayor to negotiate the terms and conditions of a renewal
Franchise Agreement with the Franchisee.
Sec. 34. Transfers.
(a) A transfer of a Franchise must not occur without prior
approval of the City.
(b) An application to transfer a Franchise must meet the
requirements of Section 8 and provide complete information on the proposed
transaction, including details on the legal, character, financial, technical
and other pertinent qualifications of the transferee, and on the potential
impact of the transfer on Subscriber rates. At minimum, the information
required in Section 8(e)(1)-(4) must be provided by the proposed transferee.
The information required in Section 8(e)(5)-(10) must also be provided
whenever the proposed transferee expects material
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changes to occur in those areas. Transfer applications should be filed at
least ninety (90) days prior to the anticipated date of the proposed
transaction.
(c) Final action on an application for transfer of a Franchise
must be taken by the Council. In making a determination on such an
application, the Council will consider the legal, financial, technical and
character qualifications of the transferee to operate the system and whether
operation by the transferee would adversely affect the Cable Services to
Subscribers or otherwise be contrary to the public interest.
(d) Approval by the City of a transfer of a Franchise does not
constitute a waiver or release of any of the rights of the City under this
ordinance or the Franchise Agreement.
Sec. 35. Revocation or termination of Franchise.
(a) A Franchise may be revoked by the Council for failure to
construct as required, operate or maintain the cable System as required by this
ordinance or the Franchise Agreement or for other material breach of this
Ordinance or the Franchise Agreement. However, where the City has issued a
Franchise specifically conditioned upon the completion of construction or
other specific obligation by a specified date pursuant to Section 39(b) failure
of the Franchisee to complete construction or comply with other specific
obligation as required will result in the automatic forfeiture of the Franchise
without further action by the City unless the City, at its discretion and for
good cause demonstrated by the Franchisee, grants an extension of time. If
within thirty (30) calendar days following written notice from the City to the
Franchisee that it is in material breach of this Ordinance or the Franchise
Agreement, the Franchisee has not taken corrective action or corrective action
is not being actively and expeditiously pursued, the Council,
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acting on its own motion or upon the recommendation of the Mayor, may give
written notice to the Franchisee of its intent to consider revocation of the
Franchise or reducing its term, stating its reasons.
(b) Before final action can be taken, the Council shall hold a
public hearing at which time the Franchisee and members of the public must be
given an opportunity to present evidence and make argument. Following the
public hearing the Council shall determine whether or not to revoke the
Franchise or reduce its term based on any recommended decision, the evidence
and argument presented at the hearing, and other evidence of record. The
Council's determination shall be reflected in a written opinion setting forth
the reasons for its decision.
(c) Any Franchise may, at the option of the City, be revoked one
hundred twenty (120) calendar days after an assignment for the benefit of
creditors or the appointment of a receiver or to take over the business of the
Franchisee whether in a receivership reorganizations bankruptcy assignment for,
the benefit of creditors, or other action or proceeding, unless within that one
hundred twenty (120) day period:
(1) Such assignment, receivership or trusteeship has been
vacated; or
(2) Such assignee, receiver or trustee has fully complied
with the terms and conditions of this Ordinance and the Franchise Agreement and
has executed an Agreement, approved by the court having jurisdiction, assuming
and agreeing to be bound by the terms and conditions of the Franchise.
(d) In the event of foreclosure or other judicial sale of any of
the facilities, equipment or property of a Franchisee, the City may revoke the
Franchise by serving notice upon the Franchisee and the successful bidder at
the sale, in which event the Franchise and all rights and
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privileges of the Franchise will be revoked thirty (30) calendar days after
serving such notice, unless:
(1) The City has approved the transfer of the Franchise
to the successful bidder; and
(2) The successful bidder has covenanted and agreed with
the City to assume and be bound by the terms and conditions of the Franchise.
(e) If the City revokes a Franchise, or if for any other reason a
Franchisee abandons, terminates or fails to operate or maintain service to its
Subscribers, the following procedures and rights are effective:
(1) The City may require the former Franchisee to remove
its facilities and equipment If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the
Franchisee's and/or surety's expense.
(2) The City, by resolution of the Council, may acquire
ownership of the Cable System at an equitable price.
(3) If a Cable System is abandoned by a Franchisee, the
City may sell, assign or transfer all or part of the assets of the system.
(f) Upon non-renewal revocation or forfeiture of a Franchise the
City may, upon resolution of the Council, acquire ownership of and operate a
Cable System.
Sec. 36. Arbitration.
(a) If the City exercises a right to purchase a Cable System
pursuant to this ordinance or a Franchise Agreement and the City and Franchisee
are unable to agree on a price for the
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purchase of the system, the price may be determined by arbitration. Other
matters that are arbitrable under the provisions of a Franchise Agreement or
this Ordinance may be subjected to the arbitration procedures specified below.
(b) The arbitration procedure employed shall be consistent with
the rules and procedures of the American Arbitration Association. The City and
the Franchisee will each select a qualified arbitrator. The two (2) persons
selected shall select a third qualified arbitrator, and the three (3)
arbitrators will constitute a panel whose decisions binding on both parties
shall be paid by the fees of the first two (2) arbitrators party selecting such
person, and the third person shall be compensated one-half by the City and
one-half by the Franchisee Payment of all other costs of the proceeding shall
be determined by the arbitrator.
Sec. 37. Continuity of service mandatory.
(a) It is the right of all Subscribers to receive all available
services from the Franchisee as long as their financial and other obligations
to the Franchisee are satisfied.
(b) In the event of a termination or transfer of the Franchise for
whatever reason, the Franchisee must do everything in its power to ensure that
all Subscribers receive continuous, uninterrupted service regardless of the
circumstances. The Franchisee must cooperate with the City to operate the
system for a temporary period following termination or transfer as necessary
to maintain continuity of service to all Subscribers. The temporary period
will not exceed six (6) months without the Franchisee's written consent.
During such period the Cable System must be operated under such terms and
conditions as the City and the Franchisee may, agree or such other
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terms and conditions that will continue, to the extent possible, the same level
of service to Subscribers and that will provide reasonable compensation to the
Cable Operator.
(c) If the Franchisee discontinues service to its Subscribers
without City approval, the Franchise may immediately be terminated, and the
City is empowered to occupy take possession of all facilities and property,
real and personal, related to the Cable System for the purpose of temporarily
operating the system. The City may undertake such operation itself or
authorize operation by a contractor.
Sec. 38. Unlawful solicitation or acceptance of gifts.
It is unlawful for any person to offer any gift, favor, loan service,
promise, employment or anything of value to a City official or employee, or for
a City official or employee to solicit or accept any such thing of value, for
the purpose of influencing the grant, modification, renewal, transfer, or any
other matter affecting a Franchise or the administration or enforcement of this
ordinance.
Sec. 39. Rates.
A. INITIAL REVIEW OF BASIC CABLE RATES
(1) Notice. Upon the adoption of this ordinance and the
certification of the City by the FCC, the City shall immediately notify all
Cable Operators in the City, by certified mail, return receipt requested, that
the city intends to regulate Subscriber rates charged for the Basic Service
Tier and associated equipment as authorized by the Cable Act of 1992.
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(2) Cable Operator response. Within 30 days of receiving
notice from the City, a Cable Operator shall file with the City, its current
rates for the Basic Service Tier and associated equipment are within the FCC's
reasonable rate standard, as determined by the applicable benchmark, the City
Council shall:
(a) Hold a public hearing at which interested
persons may express their views; and
(b) Act to approve the rates within 30 days from
the date the Cable operator filed its Basic Cable Rates with the City.
(c) If the City Council takes no action within 30
days from the date the Cable Operator filed its Basic Cable Rates with the
City, the proposed rates will continue in effect.
(3) Extended review period. If the Council is unable to
determine whether the rates in issue are within the FCC's reasonable rate
standard based on the material before it, or if the Cable Operator submits a
cost-of-service showing, the City Council shall, within 30 days from the date
the Cable Operator filed its basic Cable Rates with the City and by adoption of
a formal resolution, invoke the following additional period of time, as
applicable, to make a final determination:
(a) 90 days if the City Council needs more time
to ensure that a rate is within the FCC' s reasonable rate standard; or
(b) 150 days if the Cable Operator has submitted
a cost-of-service showing seeking to justify a rate above the applicable
benchmark.
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(c) If the City Council has not made a decision
within the 90 or 150 day period, the city council shall issue a brief written
order at the end of the period requesting the Cable Operator to keep accurate
account of all amounts received by reason of the proposed rate and on whose
behalf the amounts are paid.
(4) Public hearing. During the extended review period
and before taking action on the proposed rate, the City Council shall not hold
at least one public hearing at which interested persons may express their views
and record objections.
(5) Objections. An interested person who wishes to make
an objection to the proposed initial basic rate may request the City Secretary
to record the objection during the public hearing or may submit the objection
in writing anytime before the decision resolution is adopted. In order for an
objection to be made part of the record, the objector must provide the City
Secretary with the objector's name and address.
(6) Benchmark analysis. If a Cable operator submits its
current basic cable rate schedule as being in compliance with the FCC's
reasonable rate standard, the City Council shall review the rates using the
benchmark analysis in accordance with the standard for authorized by the FCC.
Based on the City Council's findings, the initial Basic Cable Rates shall be
established as follows:
(a) If the current Basic Cable Rates are below
the benchmark, those rates shall become the initial Basic Cable Rates and the
Cable Operator's rates will be capped at that level.
(b) If the current Basic Cable Rates exceed the
benchmark, the rates shall be the greater of the Cable Operator's per Channel
rate on September 30, 1992, reduced by
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10 percent, or the applicable benchmark, adjusted for inflation and any change
in the number of Channels occurring between September 30, 1992 and the initial
date of regulation.
(c) If the current Basic Cable Rates exceed the
benchmark, but the Cable Operator's per Channel rate was below the benchmark on
September 30, 1992, the initial basic cable rate shall be the benchmark,
adjusted for inflation.
(7) Cost-of-service showings. If a Cable Operator does
not wish to reduce the rates to the permitted level, the Cable Operator shall
have the opportunity to submit a cost-of-service showing in an attempt to
justify a initial Basic Cable Rates above the FCC's reasonable rate standard.
The City Council will review a cost-of-service submission pursuant to FCC
standards for cost-of-service review. The City Council may approve initial
Basic Cable Rates above the benchmark if the Cable Operator makes the necessary
showing; however, a cost-of-service determination resulting in rates below the
benchmark or below the Cable Operator's September 30. 1992 rate minus 10
percent, will prescribe the Cable Operator' s new rates.
(8) Decision. By formal resolution. After completion of
its review of the Cable Operator's proposed rates, the City Council shall adopt
its decision by formal resolution. The decision shall include one of the
following:
(a) If the proposal is within the FCC's
reasonable rates standard or is justified by a cost-of-service analysis, the
City Council shall approve the initial Basic Cable Rates proposed by the Cable
Operator, or
(b) If the proposal is not within the FCC's
reasonable rate standard and the cost-of-service analysis, if any, does not
justify the proposed rates, the City Council shall
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establish initial Basic Cable Rates that are within the FCC's reasonable rate
standard or that are justified by a cost-of-service analysis.
(c) Rollbacks and refunds. If the City Council
determines that the initial Basic Cable Rates are submitted exceed the
reasonable rate standard or that the Cable Operator's cost-of-service showing
justifies lower rates, the City Council may order the rates reduced in
accordance with Paragraph (g) or (h) above, as applicable. In addition, the
City Council may order the Cable Operator to pay to Subscribers, refunds of the
excessive portion of the rates with interest (computed at applicable rates
published by the Internal Revenue Service for tax refunds and the interest rate
will be in accordance with FCC regulations as directed in the City Council's
decision resolution.
(d) Statement of reasons for decision and public
notice. If rates proposed by a Cable operator are disapproved in whole or in
part, or if there were objections made by other parties to the proposed rates,
the resolution must state the reasons for the decision and the City Council
must give public notice of its decision. Public notice will be begin by
advertisement once in the official newspaper of the City.
(9) Appeal. The city council's decision concerning rates
for the basic service tier or associated equipment, may be appealed to the FCC
in accordance with applicable federal regulations.
B. REVIEW OF REQUEST FOR INCREASE IN BASIC CABLE RATES
(1) Notice. A Cable Operator in the City who wishes to
increase the rates for the Basic Service Tier or associated equipment shall
file a request with the City and notify all Subscribers at least 30 days before
the Cable Operator desires the increase to take effect. This
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notice may not be given more often than annually and not until at least one
year after the determination of the initial Basic Cable Rates.
(2) Expedited determination and public hearing. (1) If
the City Council is able to expeditiously determine that the Cable operator' s
rate increase request for basic Cable Service is within the FCC's reasonable
rate standard, as determined by the applicable Price Cap, the City Council
shall:
(a) Hold a public hearing at which interested
persons may express their views; and
(b) Act to approve the rate increase within 30
days from the date the Cable Operator filed its request with the City.
(c) If the City Council takes no action within 30
days from the date the Cable Operator filed its request with the City, the
proposed rates will go into effect.
(3) Extended review period. If the City Council is
unable to determine whether the rate increase is within the FCC's reasonable
rate standard based on the material before it, or if the Cable Operator submits
a cost-of-service showing, the City Council shall, by adoption of a formal
resolution, invoke the following additional periods of time, as applicable, to
make a final determination:
(a) 90 days if the City Council needs more time
to ensure that the requested increase is within the FCC's reasonable rate
standard as determined by the applicable Price Cap; and
(b) 150 days if the Cable Operator has submitted
a cost-of-service showing seeking to justify a rate increase above the
applicable Price Cap.
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(c) The proposed rate increase is tolled during
the extended review period.
(d) If the City Council has not made a decision
within the 90 or 150 day period, the City Council shall issue a brief written
order at the end of the period requesting the Cable Operator to keep accurate
account of all amounts received by reason of the proposed rate increase and on
whose behalf the amounts are paid.
(4) Public hearing. During the extended review period
and before taking action on the requested rate increases, the City Council
shall hold at least one public hearing at which interested persons may express
their views and record objections.
(5) Objections. An interested person who wishes to make
an objection to the proposed rate increase may request the City Secretary to
record the objection during the public hearing or may submit the objection in
writing anytime before the decision resolution is adopted. In order for an
objection to be made part of the record, the objector must provide the City
Secretary with the objector's name and address.
(6) Delayed determination. If the City Council is unable
to make a final determination concerning a requested rate increase within the
extended time period, the Cable Operator may put the increase into effect,
subject to subsequent refund if the City Council later issues a decision
disapproving any portion of the increase.
(7) Price Cap analysis. If a Cable Operator presents its
request for a rate increase as being in compliance with the FCC's Price Cap,
the City Council shall review the rate using the Price Cap analysis in
accordance with the standard form authorized by the FCC. Based on the City
Council's findings, the Basic Cable Rates shall be established as follows:
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(a) If the proposed basic cable rate increase is
within the Price Cap established by the FCC, the proposed rates shall become
the new Basic Cable Rates.
(b) If the proposed Basic Cable Rates increase
exceeds the Price Cap established by the FCC, the City Council shall disapprove
the proposed rate increase and order an increase that is in compliance with the
Price Cap.
(8) Cost-of-service showing. If a Cable Operator submits
a cost-of-service showing in an attempt to justify a rate increase above the
Price Cap, the City Council will review the submission pursuant the FCC
standards for cost-of-service review. The City Council may approve a rate
increase above the Price Cap if the Cable Operator makes the necessary showing;
however, a cost-of-service determination resulting in a rate below the Price
Cap or below the Cable Operator's then current rate will prescribe the Cable
Operator's new rate.
(9) Decision. The City Council's decision concerning the
requested rate increase, shall be adopted by formal resolution. If a rate
increase proposed by a Cable Operator is disapproved in whole or in part, or if
objections were made by other parties to the proposed rate increase, the
resolution must state the reasons for the decision. Objections may be made at
the public hearing by a person requesting the City Secretary to record the
objection or may be submitted in writing at anytime before the decision
resolution is adopted.
(10) Refunds. The City Council may order refunds of
Subscribers, rate payments with interest if:
(a) The City Council was unable to make a
decision within the extended time period as described in Paragraph (c) above;
and
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(b) The Cable Operator implemented the rate
increase at the end of the extended review period; and
(c) The City Council determines that the rate
increase as submitted exceeds the applicable Price Cap or that the Cable
Operator failed to justify the rate increase by. a cost-of service showing, and
the City Council disapproves any portion of the rate increase.
(d) The method of paying any refund and the
interest rate will be in accordance with FCC regulations as directed in the
City Council's decision resolution.
(11) Appeal. The City Council's decision concerning rates
for the Basic Service Tier or associated equipment, may be appealed to the FCC
in accordance with applicable federal regulations.
C. CABLE OPERATOR INFORMATION
(1) City may require. (a) In those cases when the Cable
operator has submitted initial rates or proposed an increase that exceeds the
reasonable rate standard, the City Council may require the Cable Operator to
produce information in addition to the submitted, including proprietary
information, if needed to make a rate determination. In these cases, a Cable
Operator may request the information be kept confidential in accordance with
this section.
(b) In cases where initial or proposed rates
comply with the reasonable rate standard, the City Council may request
additional information only in order to document that the Cable Operator's
rates are in accord with the standard.
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(2) Request for Confidentiality. A Cable Operator
submitting information to the City Council may request in writing that he
information not be made routinely available for public inspection. A copy of
the request shall be attached to and cover all of the information and all
copies of the information to which it applies.
(a) If feasible, the information to which the
request applies shall be physically separated from any information to which the
request does not apply. If this is not feasible, the portion of the
information to which the request applies shall be identified.
(b) Each request shall contain a statement of the
reasons for withholding inspection and a statement of the facts upon which
those reasons are based.
(c) Casual requests which do not comply with the
requirements of this subsection, shall not be considered.
(d) City Council action. Requests which comply
with the requirements of Subsection (b), will be acted upon the City Council.
The City Council will grant the request if the Cable Operator presents by a
preponderance of evidence, a case for nondisclosure consistent with applicable
federal regulations. If the request is granted, the ruling will be placed in a
public file in lieu of the information withheld from public inspection. If the
request does not present a case for nondisclosure and the City Council denies
the request, the City Council shall take one of the following actions:
(i) If the information has been
submitted voluntarily without any direction from the City, the Cable Operator
may request that the City return the information without considering it.
Ordinarily, the City will comply with this request. Only in the unusual
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instance that the public interest so requires will the information be made
available for public inspection.
(ii) If the information was required to
be submitted by the City Council, the information will be made available for
public inspection.
(3) Appeal. If the City Council denies the request for
confidentiality, the Cable Operator may seek review of that decision from the
FCC within five working days of the City Council's decision, and the release of
the information will be stayed pending review.
D. AUTOMATIC RATE ADJUSTMENTS
(1) Annual inflation adjustment. In accordance with FCC
regulations, the Cable operator may adjust its capped base per Channel rate for
the Basic Service Tier annually by the final GNP-PI index.
(2) Other external costs. The FCC regulations also allow
the Cable Operator to increase its rate for the Basic Service Tier
automatically to reflect certain external cost factors to the extent that the
increase in cost of those factors exceeds the GNP-PI. These factors include
retransmission consent fees, programming costs, state and local taxes
applicable to the provision of cable television service, and costs of Franchise
requirements. The total cost of an increase in a Franchise fee may be
automatically added to the base per Channel rate, without regard to its
relation to the GNP-PI.
(a) For all categories of external costs other
than retransmission consent and Franchise fees, the starting date for measuring
changes in external costs for which the basic service per Channel rate may be
adjusted will be the date on which the Basic Service Tier becomes subject to
regulation or February 28, 1994, whichever occurs first. The permitted per
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Channel charge may not be adjusted for costs of retransmission consent fees or
changes in those fees incurred before October 6, 1994.
(3) Notification and review. The Cable Operator shall
notify the City at least 30 days in advance of a rate increase based on
automatic adjustment items. The City shall review the increase to determine
whether the item or items qualify as automatic adjustments. If the City makes
no objection within 30 days of receiving notice of the increase, the increase
may go into effect.
E. ENFORCEMENT
(1) Refunds. The City may order the Cable Operator to
refund to Subscribers a portion of previously paid rates under the following
circumstances:
(a) A portion of the previously paid rates have
been determined to be in excess of the permanent Tier charge or above the
actual cost of equipment; or
(b) The Cable Operator has failed to comply with
a valid rate order issued by the City.
(C) Fines. If the Cable Operator fails to comply with a
rate decision or refund order, the Cable operator shall be subject to a fine of
$500 for each day the Cable Operator fails to comply.
Sec. 40. Access facilities.
(a) Applications for a Franchise or Franchise renewal shall
include proposals for the provision of public, educational and governmental
access Channels sufficient to meet community needs during term of Franchise as
determined by City. A Franchisee or applicant shall specify
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what grants, if any, it is willing to make for studio equipment and facilities
to be used for local program production by all cable access users.
(b) All access Channel operations must conform to the following
minimum requirements:
(1) the City may require that a Franchisee provide studio
space for access use. Access Channels shall be carried on the Franchisee's
lowest priced service offering.
(2) The Franchisee shall have no control over the content
of any programming carried on access Channels. The City may require a
Franchisee or select a non-profit corporation or other entity, to manage the
access program and to establish reasonable rules for the use of access Channels
consistent with the requirements of this Ordinance, the Franchise Agreement and
the intended purpose of such Channels. Such rules shall be subject to review
and approval by the City.
(3) The use of any public access Channel shall be made
available to any City resident on a nondiscriminatory basis at no charge of
Channel use. Where access studio facilities are located on a Franchisee's
premises, the Franchisee shall make its personnel available for consultation
and assistance to access uses at no charge provided that such personnel can be
spared from their normal duties.
(c) At the request of a Franchisee the City shall promulgate rules
under which Channel capacity dedicated to access use may be used by the
Franchisee when it is not being used for access purposes.
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Sec. 41. Cable Advisory Committee.
(a) The City may establish a Cable Advisory Committee to advise it
on matters related to the use of Cable Systems and facilities. Unless
otherwise provided, any such committee shall consist of five (5) residents of
the City appointed by the Mayor and confirmed by the Council. If such a
committee is to have a continuing or indefinite existence, members shall serve
for overlapping terms of five (5) years, or until their successors are
appointed and confirmed. A vacancy on the committee shall be filled for the
unexpired term of the departing member.
(b) Each Franchisee shall have the right to participate in the
Cable Advisory Committee by the appointment of an ex-officio member of the
Committee who shall be at all times during such service an employee or officer
of the Franchisee. Such member shall be appointed by the Franchisee informing,
in writing, the Mayor of the person designated to act on behalf of the
Franchisee for such purpose. Upon receipt of such notification the Mayor shall
inform the Chairperson of the Cable Advisory Committee of the appointment of
such ex-officio member.
(c) An Advisory Committee shall advise the City on matters related
to the use of cable communications operations as specified by the mayor or
Council at the time of its establishment. Its functions may be modified from
time-to-time by the Mayor or Council.
(d) Members of the Cable Advisory Committee shall receive no
compensation for their services except reasonable and necessary expenses as may
be provided in the budget. Ex-officio members of the Cable Advisory Committee
shall receive no compensation for their services and shall not be reimbursed
for any expenses in connection with participation in the Cable Advisory
Committee.
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Sec. 42. Performance evaluation.
(a) The City may periodically evaluate the performance of a
Franchisee during the Franchise term. A Franchisee shall cooperate fully with
these evaluations and supply the City with all relevant information requested.
If the City desires to implement a survey of Subscribers in connection with its
evaluation of service, a Franchisee shall distribute the City's questionnaire
to its Subscribers. Any meetings between the City and the Franchisee for
purposes of evaluation shall be publicized in advance and open to the public.
(b) If evaluation indicates the need for modification to the
Franchise Agreement, the City shall attempt to negotiate the necessary changes.
The City shall issue a report to the Council of the results of the performance
evaluation and any recommended changes to the Franchise Agreement as negotiated
with the Franchisee.
(c) The Council may hold a public hearing on any performance
evaluation reports. Any Franchise Agreement modifications must be approved by
the Council before they become effective.
Sec. 43. Administration.
(a) The City Clerk shall have the responsibility for overseeing
the day-to-day administration of cable communication operations within the City
as governed by this ordinance and the applicable Franchise Agreement. The City
Clerk shall be empowered to take all administrative actions on behalf of the
City except for those actions specified herein which are reserved to the
Council or other named entity.
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(b) The Council has the sole authority to: grant Franchises,
authorize the execution of Franchise Agreements, modify Franchise Agreements,
renew Franchises, revoke Franchises, and authorize the transfer of Franchises.
Where this Ordinance or a Franchise Agreement specifies that a certain action
will be taken by the Council or other named City entity, that action is
reserved to the named entity.
(c) All filings and reports required of Franchisees or applicants
pursuant to this ordinance or a Franchise Agreement shall be made with the City
Clerk unless otherwise specified.
AYES: -Aldermen Belangee, Brown, Mathon, Newberry, Passoni, Wareham and Wright
NAYS: -None
ABSENT: Alderman Zeitler
FILED IN THE OFFICE OF THE CITY CLERK,
CITY OF TAYLORVILLE, ON THE 17TH DAY OF MAY, 1994
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I authorize the transfer of Franchises. Where this ordinance or a Franchise
Agreement specifies that a certain action will be taken by the Council or other
named City entity, that action is reserved to the named entity.
(c) All filings and reports required of Franchisees or
applicants pursuant to this ordinance or a Franchise Agreement shall be made
with the City clerk unless otherwise specified.
Sec. 44. Applicability
This ordinance, or an amendment thereto, shall be applicable to all
cable Franchises issued by the City, whether or not such Franchises were issued
prior to the effective date of this ordinance or an amendment thereto.
However, this ordinance shall not act to unilaterally abrogate prior
contractual commitments of the City as contained in any Franchise Agreement.
PASSED and ADOPTED This 16th day of May 1994.
APPROVED: Mayor
ATTEST: City Clerk
DEPOSITED and FILED with me in my office this 17th day of May, 1994.
City Clerk.
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