ORDINANCE CABLE FRANCHISE ADOPTED PURSUANT TO VIRGINIA AND OTHER APPLICABLE LAW
CREATING A FRANCHISE APPLICABLE TO THE CONSTRUCTION, OPERATION AND MAINTENANCE
OF A CABLE SYSTEM BY CAVALIER IP TV, LLC IN THE CITY OF HAMPTON, VIRGINIA AND PROVIDING FOR FEES, SERVICES, AND ENFORCEMENT BY CITY FOR A TERM OF FIFTEEN
It is ordained as follows:
The City Council of the
City of Hampton, Virginia adopts this Ordinance to comply with Applicable Law
based on a request received by City on December 15, 2006, from Cable
Operator for an Ordinance Cable Franchise.
As used in this
Ordinance Cable Franchise, the following terms, phrases, words, and derivations
shall have the meaning given herein. When not inconsistent with the context,
words used in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include the
plural number. The word shall is always mandatory and not merely directory.
Words not defined shall be given their common and ordinary meaning.
the federal Communications Act of 1934, as amended.
another person who owns or controls, is owned or controlled by, or is under
common ownership or control with, such person.
means the Act, the Virginia Act, the Master Cable Ordinance of the City of Hampton, and such state and federal laws and rules and City ordinances as may govern the
construction, operation, and maintenance of a Cable System.
application based upon the requirements of the Citys Master Cable Ordinance,
and identified in the Hampton City Code at Chapter 9.1.
Service Tier means the
service tier that includes (i) the retransmission of local television broadcast
channels and (ii) public, educational, and governmental channels required to be
carried in the basic tier.
Cavalier IP TV, LLC.
Service or Service means the
one-way transmission to Subscribers of (i) video programming or (ii) other
programming service, and Subscriber interaction, if any, which is required for
the selection or use of such video programming or other programming service.
Cable Service does not include any video programming provided by a commercial
mobile service provider defined in 47 U.S.C. 332(d).
System or Cable Television System or System means any
facility consisting of a set of closed transmission paths and associated signal
generation, reception, and control equipment that is designed to provide Cable
Service that includes video programming and that is provided to multiple
Subscribers within a community, except that such definition shall not include
(i) a system that serves fewer than twenty (20) Subscribers; (ii) a facility
that serves only to retransmit the television signals of one (1) or more television
broadcast stations; (iii) a facility that serves only Subscribers without using
any public right-of-way; (iv) 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. 201 et seq., except that such facility shall be considered a Cable
System to the extent such facility is used in the transmission of video
programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on-demand services; (v) any facilities of any electric
utility used solely for operating its electric systems; (vi) any portion of a
system that serves fewer than fifty (50) Subscribers in any locality, where
such portion is a part of a larger system franchised in an adjacent locality; or (vii) an open video system that complies with 653 of Title VI of the
Communications Act of 1934, as amended, 47 U.S.C. 573.
Provider of Telecommunications Services means a
person holding a certificate issued by the State Corporation Commission to
provide local exchange telephone service.
or Locality means the
City of Hampton, Virginia.
Information or Confidentiality means such
information or disclosures made to City by Cable Operator where pursuant to
applicable open records and Data Practices law in the Virginia Code Ann.,
included in Section 2.2-3705.6 may be disclosed, when requested by Cable
Operator will not be publicly disclosed.
Majeure means an
event or events reasonably beyond the ability of the Cable Operator to anticipate
and control. Force Majeure includes, but is not limited to, acts of God,
incidences of terrorism, war or riots, labor strikes or civil disturbances,
floods, earthquakes, fire, explosions, epidemics, hurricanes, tornadoes,
governmental actions and restrictions, work delays caused by waiting for
utility providers to service or monitor or provide access to utility poles to
which the Cable Operator's facilities are attached or to be attached or
conduits in which the Cable Operator's facilities are located or to be located,
and unavailability of materials or qualified labor to perform the work
(m) Franchise means an
initial authorization, or renewal thereof, issued by the Locality, that
authorizes the construction, operation, and maintenance of a Cable System.
means throughout the whole area of the City of Hampton, Virginia.
Revenue means all
revenue, as determined in accordance with generally accepted accounting
principles, that is actually received by the Cable Operator and derived from
the operation of the Cable System to provide Cable Services in the Franchise
Area. The term shall not include: (i) refunds or rebates made to Subscribers or
other third parties; (ii) any revenue which is received from the sale of
merchandise over home shopping channels carried on the Cable System, but not
including revenue received from home shopping channels for the use of the Cable
Service to sell merchandise; (iii) any tax, fee, or charge collected by the
Cable Operator and remitted to a governmental entity or its agent or designee,
including without limitation a local public access or education group; (iv)
program launch fees; (v) directory or Internet advertising revenue including,
but not limited to, yellow page, white page, banner advertisement, and
electronic publishing; (vi) a sale of Cable Service for resale or for use as a
component part of or for the integration into Cable Services to be resold in
the ordinary course of business, when the reseller is required to pay or
collect franchise fees or similar fees on the resale of the Cable Service;
(vii) revenues received by any Affiliate or any other person in exchange for
supplying goods or services used by the Cable Operator to provide Cable
Service; and (viii) revenue derived from services classified as non-cable
services under federal law, including, without limitation, revenue derived from
telecommunications services and information services, and any other revenues
attributed by the Cable Operator to non-cable services in accordance with
rules, regulations, standards, or orders of the Federal Communications
On-Demand Services means a
service providing video programming to Subscribers over switched networks on an
on-demand, point-to-point basis, but does not include services providing video
programming prescheduled by the programming provider.
Cable Franchise or Ordinance means this
Ordinance granting a Franchise to the Cable Operator pursuant to Applicable
Access Channels means the
availability of capacity on a Cable System for public, education or government
use (including institutional network use) by various agencies, institutions,
organizations, groups, and individuals, including the Locality and its
designated access providers, to acquire, create, and distribute programming not
under a Cable Operators editorial control.
Capital Fee means a
recurring fee paid by a Cable Operator to support the capital costs of PEG
Access Facilities, including institutional networks.
Capital Grant Surcharge Fee means a fee
paid by a new Cable Operator equal to the lower of (i) one and one‑half
percent (1.5%) of the new Cable Operator's Gross Revenues derived from the
operation of its Cable System in the Franchise Area or (ii) the lowest amount
of capital contribution paid or provided in-kind, as shown on the books of the
existing Cable Operator in the Franchise Area (a) when such capital contribution
is amortized over the term of the existing Cable Operator's franchise and (b)
divided by the number of Subscribers or annual Gross Revenue of the existing
Cable Operator as shown on its most recent report to the Locality, depending on
recovery methodology chosen by the Locality.
Rights-of-Way means the
surface, the airspace above the surface and the area below the surface of any
public street, highway, lane, path, alley, sidewalk, boulevard, or drive,
including public utility easements or rights-of-way, and any temporary or
permanent fixtures or improvements located thereon, now or hereafter held by
the Locality which shall entitle the Locality and a Cable Operator to the use
thereof for the purpose of installing and maintaining a cable System.
(v) Subscriber means the
Locality or any person who is lawfully receiving, for any purpose or reason,
any Cable Service via the Cable Operators Cable System, whether or not a fee
is paid for such Service.
(w) Transfer means any
transaction in which (i) an ownership or other interest in the Cable Operator
is transferred, directly or indirectly, from one (1) person or group of persons
to another person or group of persons, so that majority control of the Cable
Operator is transferred; or (ii) the rights and obligations held by the Cable
Operator under the Cable Franchise granted under this Ordinance are transferred
or assigned to another person or group of persons. However, notwithstanding
clauses (i) and (ii) of the preceding sentence, a transfer of the Cable
Franchise shall not include (a) transfer of an ownership or other interest in
the Cable Operator to the parent of the Cable Operator or to another Affiliate
of the Cable Operator; (b) transfer of an interest in the Cable Franchise
granted under this Ordinance or the rights held by the Cable Operator under the
Cable Franchise granted under this Ordinance to the parent of the Cable
Operator or to another Affiliate of the Cable Operator; (c) any action that is
the result of a merger of the parent of the Cable Operator; (d) any action that
is the result of a merger of another Affiliate of the Cable Operator; or (e) a
transfer in trust, by mortgage, or by assignment of any rights, title, or
interest of the Cable Operator in the cable franchise or the system used to
provide cable in order to secure indebtedness.
programming provided by, or generally considered comparable to, programming
provided by a television broadcast station.
means Va. Code Ann. 15.2‑2108.9,
et seq. as amended.
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
of Authority: After review
of the Application and adoption of this Ordinance and further by operation of
Applicable Law, including the Virginia Act 15.2‑2108.21, and upon
acceptance by Cable Operator as provided for in this Ordinance, this Ordinance
and the Franchise granted to Cable Operator is deemed to be effective as of
December 15, 2006. The Franchise granted to the Cable Operator by this
Ordinance is for construction and operation of its System subject to the applicable terms and conditions of this Ordinance, and all Applicable Law. The
Cable Operator has the right to construct, reconstruct, operate and maintain
its System within the Public Rights-of-Way as set forth below. This Franchise
Cable Ordinance neither authorizes the Cable Operator to use the Public Rights‑of‑Way
for purposes of providing any service other than the Service, nor prohibits the
Cable Operator from doing so. The Cable Operators authority to provide
non-cable service shall be subject to Applicable Law. No privilege or power of
eminent domain is bestowed by this Ordinance.
Served: The Franchise
granted hereunder is for the Initial Service Area identified by the Cable
Operator and depicted in maps associated hereto in Appendix A, extension of the
Cable System to other portions of the Franchise Area shall be in accordance
with this Ordinance as set forth below.
(c) Term: This Franchise shall extend for a term of
fifteen (15) years, commencing on effective date set forth above, unless it is
earlier revoked as provided herein or other Applicable Law.
(d) Grant Not Exclusive: This
Ordinance and the Franchise and the right it grants to Cable Operator to use
and occupy the Public Rights‑of‑Way shall not be exclusive, and the
Locality reserves the right to grant other franchises for similar uses or for
other uses of the Public Rights-of-Way, or any portions thereof, to any person,
or to make any such use itself, at any time, in accordance with Applicable Law.
with Applicable Law: The Cable Operator shall comply with this
Ordinance and all Applicable Law subject to exercise of City police powers its rights
under Applicable Law to exercise its governmental powers to their full extent.
(f) Effect of
Acceptance: By Accepting the Franchise the Cable Operator:
(1) Accepts and agrees to comply with this
Ordinance and all Applicable Laws;
(2) Agrees that this Ordinance was adopted pursuant
to processes and procedures consistent with Applicable Law; that no provision,
condition or term of this Ordinance at the time of the acceptance of the
Franchise granted by this Ordinance was unlawful, unreasonable or arbitrary,
void or unenforceable.
(g) No Waiver:
(1) The failure of the Locality on one (1) or more
occasions to exercise a right or to require compliance or performance under
this Ordinance or any other Applicable Law shall not be deemed to constitute a
waiver of such right or a waiver of compliance or performance by the Locality,
nor to excuse the Cable Operator from complying or performing, unless such
right or such compliance or performance has been specifically waived in
(2) No waiver by the Locality of any breach or
violation of any provision of this Ordinance shall be deemed to be a waiver or
a continuing waiver by the Locality of any subsequent breach or violation of
the same or any other provision. Neither the granting of this Ordinance, nor
any provision herein, nor any action by the Locality hereunder shall constitute
a waiver of or a bar to the exercise of any governmental right or power of the
Locality, including without limitation the right of eminent domain.
(h) No Recourse:
Without limiting such immunities as the
Locality or other persons may have under Applicable Law, the Cable Operator
shall have no monetary recourse against the Locality or its officials, boards,
commissions, agents or employees for any loss, costs, expense or damage arising
out of (i) the construction, operation or repair of its System; or (ii) the
acts or omissions of the Locality or any other entity using the Public Rights‑of‑Way
or other property under the Localitys control, except acts and omissions of
the Locality that involve gross negligence or intentional or criminal
misconduct by the Locality.
The Cable Operator
shall not Transfer the Franchise granted herein without the prior written
consent of the Locality, provided that such consent shall not be unreasonably
withheld, delayed, or conditioned. No Transfer shall be made to a person, group
of persons or Affiliate that is not legally, technically, and financially
qualified to operate the Cable System and satisfy the Franchise obligations.
4. PROVISION OF CABLE SERVICE
(a) Availability of Cable Service: The
Cable Operator shall make Service available (i) up to all of the occupied
residential dwelling units in the Initial Service Areas as depicted/described
in Exhibit A within three (3) years from the date of the Franchise, subject to the limitations set forth in 4(b)(1), below and (ii) no less than sixty-five percent
(65%) of the residential dwelling units in the area in the Locality in which
the Cable Operator has its telephone facilities, within no less than seven (7)
years from the date of the Franchise. The Locality shall have the right to monitor and inspect
the deployment of Cable Services and the Cable Operator shall submit semiannual
progress reports detailing the current provision of Cable Services in
accordance with the deployment schedule and its new service area plans for the
next six months. The reports shall include visual (graphic, mapping) or
written descriptions of actual geographic boundaries of the service areas identified
in this section.
of Service Requirements:
(1) The Cable Operator shall not be required to
make the Service available: (a) for periods of Force Majeure; (b) for periods of delay caused by the Locality; (c) for periods of delay resulting from
the Cable Operators inability to obtain authority to access rights-of-way in
the service area; (d) in areas where developments or buildings are subject to claimed exclusive arrangements; (e) in developments or buildings that the Cable Operator
cannot access under industry standard terms and conditions after good faith
negotiation; (f) in developments or buildings that the Cable Operator is unable
to provide the Service for technical reasons or that require facilities that
are not available or cannot be deployed on a commercially reasonable basis; (g)
in areas where it is not technically feasible to provide the Service due to the
technology used by the Cable Operator to provide the Service; (h) in areas
where the average occupied residential household density is less than thirty
(30) occupied residential dwelling units per mile as measured in strand footage
from the nearest technically feasible point on the Cable Operators active
System; and (i) when the Cable Operators prior service, payment, or theft of
service history with a Subscriber or potential Subscriber has been unfavorable.
(2) Should, through new construction, an area
within the Cable Operators Service Area meet the density requirement, the
Cable Operator shall, subject to the exclusions in this Section 4(b),
provide Service to such area within six (6) months of receiving notice that the
density requirements have been met.
Locality shall not require Cable Operator to use its telephone facilities to
provide Cable Service outside of the area in the Locality in which the Cable
Operator has its telephone facilities.
the twelve (12) month period commencing after the seventh (7th) year
anniversary date of the grant of this Franchise Ordinance, the Locality may, by
ordinance adopted after a public hearing in which the Locality specifically
finds that such a requirement is necessary to promote competition in Cable
Services within the Locality, require the Cable Operator to make Service
available to eighty percent (80%) of the residential dwelling units in the area
in the Locality in which the Cable Operator has its telephone facilities within
no less than ten (10) years of the date of the grant of the Franchise, subject to the exclusions in clauses (a) through (i) of Section 4(b) above. If the Cable Operator
notifies the Locality that it is unwilling to accept this additional service
availability requirement, the Locality may, after notice and public hearing,
terminate this Ordinance Cable Franchise.
Cable Operator shall file a certificate with the Locality at its third (3rd)
and seventh (7th), and if applicable, tenth (10th),
anniversary dates certifying its compliance with the foregoing service
(c) If within
three (3) years after the grant of this Ordinance the Cable Operator notifies
the Locality that its provision of Cable Services within the Locality is no
longer economically feasible, it may surrender this Franchise for the entire
Locality without liability. If the Cable Operator surrenders this Franchise,
it shall not be eligible to obtain a new Cable Service Franchise within the
Locality until after the normal expiration date of this Ordinance.
5. CONSTRUCTION AND MAINTENANCE
(a) System Tests and Inspections:
(1) The Cable Operator
shall conduct tests upon the Localitys request to ensure that its System is
functioning in compliance with Applicable Laws and regulations, including
Federal Communications Commission signal leakage requirements, and make the
results of such tests available to the Locality to verify such compliance.
Such results shall be held proprietary and confidential. If any such test
indicates that any part or component of the System fails to meet applicable
requirements, the Cable Operator, without requirement of additional notice or
request from Locality, shall take corrective action, retest the locations and
advise the Locality of the action taken and results achieved.
Locality may conduct inspections of construction areas and Subscriber
installations, including but not limited to inspections to assess compliance
with the Cable Operator's construction and installation requirements, this
Agreement and Applicable Law generally. Inspection does not relieve the Cable
Operator of its obligation to build in compliance with all provisions of the
Proposed Construction Work: The Cable Operator shall notify the public
prior to commencing any proposed construction that will significantly disturb
or disrupt public property or have the potential to present a danger or affect
the safety of the public generally. The Cable Operator shall publicize
proposed construction work at least one (1) week prior to commencement of that
work by causing written notice of such construction work to be delivered to the
Localitys public works department and by notifying those Persons most likely
to be affected by the work in at least two (2) of the following ways: by
telephone, in person, by mail, by distribution of flyers to residences, or by
publication in local newspapers.
6. SYSTEM FACILITIES, EQUIPMENT AND SERVICES
Characteristics: The Cable Operator's System shall, at all times
during the Franchise term, meet or exceed the following requirements:
(1) The Cable Operator shall comply with all Applicable Law
and regulations concerning System compatibility with Subscribers' television
receivers and/or electronic recording devices.
Cable Operator shall comply with all FCC regulations regarding scrambling or
other encryption of signals.
(3) The System shall function so that there is no
significant deterioration in the quality of PEG Access signals or leased access
signals, either upstream or downstream, as compared with any other channel on
(b) Closed Captioning and
Descriptive Audio Service. The Cable
Operator shall make audio descriptive service and closed captioning
capabilities available to the extent required by Applicable Law.
Control Devices. The Cable
Operator shall make available parental control devices as required by
Standards: The System
shall meet or exceed the applicable technical standards set forth in 47 C.F.R.
76.601 and any other applicable technical standards.
Access Channels: The Cable
Operator shall provide leased access channels as required by Applicable Law.
Cable Operator shall install and maintain for use by the Locality an Emergency
Alert System (EAS) meeting all applicable requirements of federal law.
(2) In the event of an emergency situation that
requires notification to Locality citizens, in addition to other methods of
notification, the Locality, in accordance with established Emergency Alert
System (EAS) procedures, will notify the Cable Operator of the emergency and
present it with an emergency message. The Cable Operator shall broadcast the emergency
message on all analog and digital channels, or shall force tune viewers to a
designated EAS alert channel, except for those off-air channels with which the
Cable Operator has agreed not to override during an emergency message. The
emergency message will advise the citizens of the emergency and direct them to
turn to the Localitys emergency alert channel for further information.
(g) Use of Poles and
Conduits: This Ordinance does not authorize Cable Operator to erect poles in the Public
Rights‑of‑Way. Cable Operator shall be responsible for obtaining
all necessary pole attachment agreements for use of existing poles.
SECTION 7. SERVICES AND
Programming Categories. Cable Operator
shall use its best efforts to provide or enable the provision of at least the
following Initial broad categories of Programming to the extent programming
within these broad categories exist and is made available to the Cable Operator
on terms and conditions acceptable to the Cable Operator, unless otherwise
required by Applicable Law:
entertainment (including movies);
culture and performing arts;
state and local government affairs;
Origination Programming, Leased Access;
Access programming channels as provided in this Ordinance.
Programming. Cable Operator has agreed to offer to all
Subscribers of its Basic Service Tier the NASA channel and the Military
or Reduction of Programming Categories.
Operator reserves the right to delete, add, or change the mix, level, or
quality of programming services subject to Applicable Law.
Operator will make its best effort to maintain the mix of programming and
number of channels as well as the Special Programming available to Subscribers
throughout the term of this Ordinance and to periodically upgrade, improve, and
add programs and services to meet community needs.
AND FACILITIES FOR PUBLIC, EDUCATIONAL AND GOVERNMENTAL USE
Access Channels and Programming:
(1) PEG Channels. Cable Operator
shall make available to all Subscribers on the System three (3) video channels
for public, educational and governmental use that is equal to the number of PEG
channels provided by the existing Cable Operator. The locality or its designee
shall assume responsibility for management, operation, and programming of such
In addition to the channels specified in Section 8(a),
if the Locality substantially utilizes its existing public, educational, and
governmental access channels, it may by ordinance, after a public hearing,
require up to three (3) additional public, educational, and governmental access
channels. For purposes of this subdivision, a public, educational, and
governmental access channel shall be considered to be substantially utilized
when twelve (12) hours are programmed on that channel each calendar day; in
addition, at least thirty‑three percent (33%) of the twelve (12) hours of
programming for each business day on average over each calendar quarter must be
non-repeat programming. For purposes of this subdivision, non-repeat
programming shall include the first three (3) videocastings of a program and shall
include programming on other public, educational, and governmental access
channels in that locality. Programming for purposes of determining substantial
utilization shall not include an alphanumeric scroll, except that for purposes
of requiring one (1) or more additional public, educational, and governmental
access channels, an alphanumeric scroll shall be included as programming on not
more than one (1) channel. Any such ordinance must apply equally to all
providers of Cable Service within the Franchise Area.
Any additional public, educational,
and governmental access channel provided pursuant to such an ordinance that is
not utilized by the Locality for at least eight (8) hours a day shall no longer
be made available to the Locality, but may be programmed at the Cable
Operator's discretion. At such time as the Locality can certify to the Cable
Operator a schedule for at least eight (8) hours of daily programming for a
period of three (3) months, the Cable Operator shall restore the previously
re-allocated channel. In addition to the channels specified in subsection (A).
Operator shall use reasonable efforts to interconnect its System with all
existing and future Cable Service franchisees or, at its option, directly with
the PEG programming provider. Cable Operator shall negotiate in good faith
with such franchisees respecting reasonable, mutually convenient,
cost-effective, and technically viable interconnection points, methods, terms
and conditions. The Cable Operator and such other franchisees shall negotiate
the precise terms and conditions of an interconnection agreement.
the Cable Operator and such other franchisees are unable to reach an
interconnection agreement, the Locality may, by ordinance adopted after a
public hearing, require the Cable Operator to interconnect with any other such
franchisees to ensure the carriage of required PEG Access Channels.
the Cable Operator and all existing Cable Operators cannot agree to an
interconnection agreement within one hundred eight (180) days of a request to
interconnect by the Cable Operator, then the Locality is authorized to
determine an interconnection point. Both Cable Operator and such other
franchisees shall use commercially reasonable efforts to complete
interconnection as soon as practicable after the Locality promulgates the
ordinance designating an interconnection point.
(b) Service to Certain Facilities:
(1) Upon the request of the Locality, and subject to the conditions in this Section 8(b), the Cable Operator shall provide, without
charge, one (1) service outlet activated for Basic Cable Service to each fire
station, public school, police station, public library, and any other local
government building, within the Cable Operators Franchise Area.
(2) The Cable Operator
shall be required to make one (1) standard installation at one (1) point
reasonably convenient to use at each site specified by the Locality pursuant to
this Section 8(b) and shall not be required to wire the entire facility or to
provide more than one (1) outlet at no cost.
(c) PEG Capital Grant Surcharge.
Operator shall pay Locality a quarterly recurring PEG Capital Grant Surcharge
fee as specified in Section 10(f).
PEG Capital Grant Surcharge will be used to support the capital costs of PEG
Access Channel facilities, including institutional networks.
PEG Capital Grant Surcharge Fee shall be paid to the Locality on a quarterly
basis for the remainder of the current franchise term of the existing Cable
Service franchisee in the Locality.
the expiration of the current term of the existing Cable Operator agrees to
negotiate in good faith with the Locality and all other Cable Service
franchisees to set a new, recurring fee to support the reasonable and necessary
capital costs of PEG Access Channel facilities, including institutional
networks, that shall be imposed on all Cable Operator and all of the Cable
Service franchisees such that the fee applies equally to all of the customers
of all Cable Operator and other Cable Service franchisees in the Locality.
the Cable Operator and all of the Cable Service franchisees and the Locality
cannot agree on such a recurring capital cost fee, the Locality, by ordinance
adopted after a public hearing, may impose a recurring fee, calculated on a per
subscriber or percentage of gross revenue basis, to support the reasonable and
necessary capital costs of PEG Access Channel facilities, including
Not Franchise Fees. Any costs to the Cable Operator associated with
the provision of support for PEG Access pursuant to this Section and any
payments made to the Locality pursuant to Section 10(f) of this Ordinance
do not constitute and are not part of a franchise fee, and fall within one or
more of the exceptions to 47 U.S.C. 542.
Schedule. All fees paid under this subdivision
shall be paid by the Cable Operator to the Locality on the same schedule as
Franchise Fees are paid under Section 10 below.
Evaluation, Review and Modification. The field of
cable communications is a relatively new and rapidly changing one which may see
many regulatory, technical, financial, marketing, and legal changes during the
term of this Ordinance. Therefore, in order to provide for a maximum degree of
flexibility in this Ordinance, and to help achieve a continued advanced and
modern System, the following evaluation provision will apply.
City reserves the right to adopt rules and regulations controlling the
procedures as set forth below and the subjects for Evaluation and Renegotiation
Sessions. In the absence of any City action taken to exercise these rights,
Cable Operator shall be subject to at least the procedures and subjects described in this Section.
City may require, at its sole discretion, evaluation sessions at any time
during the term of this Ordinance, provided, however, there shall not be more
than one (1) evaluation session during ay one (1) calendar year.
which may be discussed at any evaluation and renegotiation session include, but
are not limited to rates, Channel capacity, the System performance,
programming, access, municipal uses of cable, Subscriber Complaints, judicial rulings, FCC rules, and any other topics the City or Cable Operator deem relevant.
an evaluation session, Cable Operator shall fully cooperate with the City and
shall provide the reports required herein to enable the City to perform the
evaluation without cost to City. To the extent such information or documents
contain confidential information as defined in paragraph 1 K of this
Ordinance, such confidential information may not be disclosed.
at any time during this evaluation, the City determines that reasonable
evidence exists of System performance which fails to meet the requirements of
this Ordinance, the City may require Cable Operator to perform tests and
analysis directed toward such suspected inadequacies. Cable Operator shall
fully cooperate with the City in performing such testing and any report
prepared by Cable Operator shall include at least:
description of the problem in the System performance which precipitated the
System component tested.
equipment used and procedures employed in testing.
method, if any, by which the System performance problem was resolved.
other information pertinent to said tests and analyses which may be required by
the City, or determined when the test is performed. If after receiving Cable
Operators report the City determines that reasonable evidence still exists of
inadequate System performance, the City may enlist an independent engineer to
perform tests and analyses directed toward such suspected failures to meet the
requirements of this Ordinance. Cable Operator shall cooperate and permit said
a result of an Evaluation and Renegotiation Session, the City or Cable Operator
may determine that a change in the terms of this Ordinance should be required
to meet the needs of the community as determined by City, that the System or
Ordinance requirements should be updated, changed, revised, or that additional
services should be provided and that to provide same would be economically
feasible. If the change is consistent with the terms of this Ordinance, the
needs of the City, and is economically feasible as determined following an
evaluation of Cable Operators financial condition, length of term remaining on
the Ordinance, economic waste, if any, that would occur should the terms be
changed, and rate of return on the investment within the community, the parties
will in good faith, review and negotiation the terms of the change and any
amendment to this Ordinance. Based on this review, and upon adoption of such a
change or new requirement through a mutually acceptable Ordinance, the change
will become effective.
10. FRANCHISE FEE
(a) Payment to Locality: Each
year during the Franchise term, as part of the compensation due to the Locality
for use of the Public Rights-of-Way pursuant to this Franchise Ordinance, the
Cable Operator shall pay to the Locality, on a quarterly basis, a Franchise Fee
of five percent (5%) of its Gross Revenue. Such payments shall be made no
later than thirty (30) days following the end of each calendar quarter. In
calculating the Franchise Fee, any discounts resulting from purchasing Cable
Services as part of a bundle shall be reasonably allocated between the
respective services that constitute the bundled transaction.
Franchise Fee payment shall be certified by the Cable Operator as correct, and
shall be accompanied by a brief report showing the basis for the computation
and such other relevant facts as may be required by the Locality, including the
completion of a Franchise Fee Payment Worksheet attached hereto as
Exhibit B. At the request of Locality, payments will be made
Payments: In the event any Franchise Fee payment or
recomputation amount is not made on or before the required date, the Cable
Operator shall pay liquidated damages as specified in Section 13(c) for failure
to render payments, plus interest charges computed from such due date, at an
annual rate equal to the commercial prime interest rate of the Locality's
primary depository bank during the period such unpaid amount is owed, in addition
to the Franchise Fee amount originally owed.
Locality shall have the right to inspect and copy records and the rights to
audit and to recompute any amounts determined to be payable under this
Agreement, whether the records are held by the Cable Operator, an Affiliate, or
any other entity that collects or receives funds related to the Cable
Operator's operation in the Locality, including, by way of illustration and not
limitation, any entity that sells advertising on the Cable Operator's behalf.
(2) The Cable Operator shall be responsible for
providing to the Locality all records necessary to confirm the accurate payment
of Franchise fees, without regard to by whom they are held. The Cable Operator
shall maintain such records for a period of three (3) years from the date of
(3) The Locality's audit expenses shall be borne by
the Locality unless the audit discloses an underpayment equal to more than five
percent (5%) of the amount due, in which case the costs of the audit shall be
borne by the Cable Operator as a cost incidental to the enforcement of the
Franchise. Any additional amounts due to the Locality as a result of the audit
shall be paid within thirty (30) days following written notice to the Cable
Operator by the Locality of the underpayment, which notice shall include a copy
of the audit report. If recomputation results in additional revenue to be paid
to the Locality, such amount shall be subject to interest as specified
(e) No Limitation on Taxing
(1) Nothing in this Franchise Ordinance shall be
construed to limit any authority of the Locality to impose any tax, fee, or
assessment of general applicability. By way of illustration and not
limitation, to the extent permitted by Applicable Law, the Locality may impose
a tax, fee, or other assessment on any Person (other than the Cable Operator)
with respect to Cable Service or other communications service provided by such
Person over a Cable System for which charges are assessed to Subscribers but
not received by the Cable Operator.
(2) The Franchise Fee payments required by this
section shall be in addition to any and all taxes, fees or charges which the
Cable Operator shall be required to pay to the Locality or to any state or
federal agency or authority, except to the extent that such taxes, fees or
charges must be considered Franchise Fees pursuant to 47 U.S.C. 542(g).
shall pay Locality a PEG Capital Grant surcharge of one and one‑half
percent (1.5%) of Franchises Gross Revenue, per annum, payable quarterly with
the Franchise Fee as described in this Section.
11. CUSTOMER SERVICE
Cable Operator shall
comply with the Customer Service Standards set forth in Exhibit C.
12. INSURANCE AND
Against Liability: The
Cable Operator shall indemnify and save free and harmless, and by the
acceptance of the Franchise granted under this Ordinance, agrees to indemnify
and save free and harmless the Locality, the Locality Council, each member
thereof, all officers, agents, employees and members of boards and commissions
of the Locality from and against any and all liability by reason of or arising
out of any and all claims, demands, causes of action or proceedings which may
be asserted, prosecuted or established against them or any of them, for damage
to persons or property of whatever nature arising out of the use by the Cable
Operator of the Public Rights‑of‑Way, or of any other operations or
activities of the Cable Operator pursuant to this Franchise Ordinance and the
operation of its Cable System, whether such damage shall be caused by
negligence or otherwise (including but not limited to any liability for damages
for defamation and damages by reason of or arising out of any failure by the
Cable Operator to secure consents from the owners, authorized distributors or
licensees of programs to be delivered by the Cable Operators Cable System or
vehicle operations) and irrespective of the amount of the liability insurance
policies required hereunder, but excepting there from liability airings out of
any claim, demand, cause of action or proceeding resulting from the negligence
or willful misconduct of the Locality, the Locality Council, each member
thereof, or officers, agents, employees or members of boards and commissions of
the Locality, or resulting from the negligence or willful misconduct of persons
distributing programs via the access channels over which persons and
programming the Cable Operator cannot legally and does not exercise control.
to Defend: The Cable Operator shall defend, and by the
acceptance of this Franchise Ordinance, agrees to defend at its own cost and
expense the Locality, the Locality Council each member thereof, all officers,
agents, employees and members of board and commissions of the Locality against
any and all claims, demands, actions or proceedings brought against them or any
of them, in respect to the matters embraced by the indemnity set forth above in
Liability Against Locality: The Cable Operator shall have no recourse
whatsoever against the Locality, the Locality Council, any member thereof, or
any officer, agent, employee or member of a board or commission of the Locality
for any loss, cost, expense or damage occasioned by any requirement or duty
imposed on Cable Operator by this Franchise or because of the enforcement of
any such requirement or duty.
Comprehensive Liability Insurance Policy: Concurrently
with the filing of the acceptance of this Franchise Ordinance, the Cable
Operator shall furnish to the Locality and at all times during the existence of
the Franchise granted hereunder, shall maintain in full force and effect, at
its own cost and expense, a Commercial General Liability Insurance Policy and
in a form satisfactory to the Locality. Said policy shall include, but shall
not be limited to, personal injury, broad form property damage, blanket
contractual, completed operations, underground hazard, explosion and collapse
hazard, independent contractors, vaults and products liability insurance. Said
policy shall insure the Cable Operator, the Locality, the Locality Council,
each member thereof, all officers, agents, employees and members of board or
commissions of the Locality against liability for all matters embraced in
paragraph 9.1, with minimum combined single liability limit of two million
Compensation Insurance: The Cable Operator will
obtain and maintain workers compensation insurance for all Cable Operators
employees, and in case any work is sublet, Cable Operator will require any
subcontractor similarly to provide workers compensation insurance for all
subcontractors employees, in compliance with state laws, and to fully protect
the Locality from any and all claims arising out of work-related occurrences.
Cable Operator hereby indemnifies Locality for any damage resulting to it from
failure of either Cable Operator or any subcontractor to obtain and maintain
such insurance. Cable Operator will provide the Locality with a certificate of
insurance indicating workers compensation insurance prior to operations under
this Franchise and the commencement of any construction, System Upgrade,
reconstruction, or maintenance of the System. The certificate of insurance
should confirm that the required endorsements are in effect.
Insured, Primary Coverage and Defense: The
policies of insurance shall contain an additional insured clause providing that
Locality, the Locality Council, each member thereof, all officers, agents,
employees and members of boards and commissions of the Locality shall be named
as an additional insured under said policy. Each such policy required above
shall provide that it is to be considered primary insurance in the event a
demand is made on the Locality. Each policy required above shall contain a
provision by the insurer to perform the covenant for defense set forth in
Each of the above‑listed policies of insurance
shall contain a provision that a written notice of cancellation or reduction in
coverage shall be delivered to the Locality Recorder thirty (30) days in
advance of the effective date thereof. If such insurance is provided by a
policy which also covers any other entity or person other than those above‑named,
then such policy shall contain the standard cross‑liability enforcement.
The Cable Operator agrees that it will not cancel or reduce said insurance
coverage without the Locality having been given thirty (30) days prior written
notice thereof by Cable Operator.
(h) Filing of
Certified Copy with Locality: A
certificate of insurance coverage shall be filed in the office of the Locality
concurrently upon the acceptance of the award of this Franchise. A certified
copy of all amendments to said policies and all replacement and renewal
policies shall be filed in the office of the Locality Recorder prior to their
in Policy Limits: If
the Locality determines that the type of insurance and minimum limits of
insurance required herein becomes inadequate for such purposes during the term
of this Franchise, then beginning January 1, 2008, the coverage as
specified in this Section may be increased in direct proportion to the increase
in the Consumer Price Index or its equivalent as reported and published by the
United States Government and measured from the period January 1, 2004
through January 1, 2007. This shall be a one‑time increase and the
amount as calculated at that point shall remain the required amounts of
coverage for the balance of the term of the Franchise. Provided further,
however, that if during any calendar year in the term of this Franchise the
Consumer Price Index shall rise by more than ten percent (10%), such an
occurrence may trigger an increase in the insurance requirements of this
Section so as to bring the insurance coverage in line with the proportionate
increase in the Consumer Price Index as measured from January 1, 2004
through the close of the year in which the Consumer Price Index increased by
more than ten percent (10%). The Locality shall provide the Cable Operator
with thirty (30) days written notice of any proposed changes in the insurance
limits and Cable Operator shall then make the changes and file with the
Locality a Certificate of Insurance within forty‑five (45) days
Any insurance policies procured by the Cable
Operator hereunder shall provide that the insurance carrier waives all rights
of subrogation against the Locality.
Parties: Cable Operator shall be liable for the acts of its
third parties (contractors and subcontractors) and ensure that before
commencement of work regarding construction, operation, and maintenance of the
Cable System, any such third parties have provided insurance in compliance with
13. PERFORMANCE GUARANTEES AND REMEDIES
Cable Operator shall obtain and maintain during the entire term of the
Franchise granted hereunder, and any renewal or extensions thereof, an
irrevocable bond from a financial institution licensed to do business in Virginia in the amount of fifty thousand dollars ($50,000), to ensure the Cable Operator's
faithful performance of its obligations.
Cable Operator shall obtain the reasonable approval of the Locality for the
language of the bond before it is obtained. The Cable Operator shall file with
the Locality a complete copy of the bond (including all terms and conditions
applying to the bond or to draws upon it) prior to its effective date, and keep
such copy current with respect to any changes over the life of the Franchise.
bond shall not contain language requiring that in the event of any default a
notice to the surety must be given within a specified period of time.
to taking any action under the bond the Locality shall give the Cable Operator
written notice of the default in its performance. If within thirty (30)
calendar days following such written notice from the Locality to the Cable
Operator the Cable Operator has not taken corrective action to the satisfaction
of the Locality, or provided a written notice of its proposed cure, the
Locality may give written notice to the Cable Operator of its intent to draw
down upon the bond.
bond shall contain language ensuring that it cannot be canceled, or allowed to
lapse, until sixty (60) days after receipt by the Locality, by certified mail,
return receipt requested, of a written notice from the issuer of intent to
cancel or not to renew.
(6) No later than thirty
(30) days after mailing of notification to the Cable Operator by certified
mail, return receipt requested, of a withdrawal from the bond, the Cable
Operator shall restore the bond to the total amount specified herein.
In addition to any other remedies available at
law or equity, the Locality may apply any one or a combination of the following
remedies in the event the Cable Operator violates this Franchise Ordinance or
applicable state or federal law:
(1) Apply any remedy provided for in this
the Franchise pursuant to the procedures specified in this Ordinance.
penalties available under applicable state and local laws for violation of
addition to or instead of any other remedy, seek legal or equitable relief from
any court of competent jurisdiction.
action, proceeding or exercise of a right by the Locality under this section
does not constitute an election of remedies or a waiver of any other right the
Locality may have, including the right to seek specific performance of a Franchise
obligation, except that the Localitys election of liquidated damages shall
take the place of any right to obtain actual damages over and above the payment
of any amounts otherwise due.
the Cable Operator's failure to comply with provisions of the Franchise
Ordinance will result in injury to the Locality, and because it is and will
be impracticable to determine the actual amount of such damage in the event of
delay or nonperformance, by accepting the Franchise granted herein the Cable
Operator agree to the following liquidated damages for the following violations
of the Franchise Ordinance.
consumer protection standards with which compliance is measured on a quarterly
basis, liquidated damages shall be assessed as follows:
measuring periods shall be January 1 through March 31, April 1 through June 30,
July 1 through September 30, and October 1 through December 31.
(B) If the Cable
Operator does not meet the prescribed standard in a given quarterly measuring
period, the Cable Operator shall be liable for liquidated damages in the
following amounts: five hundred dollars ($500) for each quarter in which such
standards were not met if the failure was by less than five percent (5%);
$1,000 for each quarter in which such standards were not met if the failure was
by five percent (5%) or more but less than fifteen (15%); and two hundred
dollars ($2,000) for each quarter in which such standards were not met if the
failure was by fifteen (15%) or more.
(2) Payment by the Cable
Operator of liquidated damages shall be due thirty (30) days after the date of
the Localitys notice assessing such damages pursuant to Applicable Law. If
the Cable Operator does not make payment within that period, the Locality may
withdraw from the Cable Operators bond the amount assessed, pursuant to
(d) Revocation or Termination of Franchise:
completion of the term of the Franchise, if a new, extended, or renewed
Franchise is not granted to the Cable Operator by the Locality, the Cable
Operator's right to occupy the Public Rights-of-Way shall terminate, subject to applicable federal or state law.
Locality shall have the right to revoke the Franchise for any material breach
of this Ordinance.
(3) To revoke the Franchise granted herein, the
Locality shall give the Cable Operator written notice of the default in its
performance. If within thirty (30) calendar days following such written notice
from the Locality to the Cable Operator the Cable Operator has not taken
corrective action to the satisfaction of the Locality, the Locality may give
written notice to the Cable Operator of its intent to revoke the Franchise,
stating its reasons; provided that no opportunity to cure shall be provided
where the Cable Operator is shown to have defrauded or attempted to defraud the
Locality or its Subscribers.
(4) Prior to revoking the Franchise, the Locality
shall hold a public hearing, on thirty (30) calendar days' notice, at which
time the Cable Operator and the public shall be given an opportunity to be
heard. Following the public hearing, the Locality may determine whether to
revoke the Franchise based on the information presented at the hearing, and
other information of record, or, where applicable, grant additional time to the
Cable Operator to affect any cure. If the Locality determines to revoke the
Franchise, it shall issue a written decision setting forth the reasons for its
decision. A copy of such decision shall be transmitted to the Cable Operator.
(5) If the Locality revokes the Franchise, or if
for any other reason the Franchise terminates, the following procedures and
rights are effective: The Locality may require the former Cable Operator to
remove its facilities and equipment at the former Cable Operator's expense and
restore affected sites as required by Applicable Law, or permit the former Cable
Operator to abandon such facilities in place, unless the Cable Operator sells
its facilities and equipment to an entity that is granted a franchise by the
Locality. If the former Cable Operator fails to remove its facilities within a
reasonable period of time, the Locality may have the removal done at the former
Cable Operator's and/or surety's expense.
Cumulative: The rights reserved to the Locality herein are
in addition to all other rights of the Locality, whether reserved herein or
authorized by Applicable Law. No action, proceeding, or exercise of a right
with respect to the letter of credit will affect any other right the Locality
may have. Neither the bond, nor the receipt of any damages recovered by the
Locality thereunder, shall be construed to excuse faithful performance by the
Cable Operator or limit the liability of the Cable Operator under the terms of
its Franchise for damages, either to the full amount of the bond or otherwise.
14. OPERATIONS AND
Books and Records: The City
shall have the right to inspect, upon twenty‑four (24) hours written
notice, at any time during normal business hours at the Cable Operators office
in City all books, records, maps, plans, financial statements, service
Complaint logs, performance test results, record of requests for service, and
other like materials of Cable Operator where related to compliance with the
terms of this Ordinance. Where such records are maintained at another office
of Cable Operator outside the City, Cable Operator shall promptly obtain such
records and make them available at its office in the City for inspection. Upon
proper request by Cable Operator, information obtained during such an
inspection shall be treated as confidential, making it available only to those
persons who must have access to perform their duties on behalf of the City,
including but not limited to the Department of Finance, the Legal Department
and Council members, if it is proprietary in nature or within the definitions
of closed records contained within the Virginia Open Meetings Act, 2.1‑340,
et seq. of the Code of Virginia, 1950, as amended. To the extent any federal
requirements for privacy applies to the information to be submitted, said law
with Regulatory Agencies: Copies of all
petitions, applications, communications and reports submitted by Cable Operator
or on behalf of or relating to Cable Operator to the FCC, Securities and
Exchange Commission, or any other federal or state regulatory commission or
agency having jurisdiction in respect to any matters affecting the System
authorized pursuant to this Franchise shall also be submitted upon request to
the City. Copies of responses from the regulatory agencies to Cable Operator
shall likewise be furnished to the City upon request.
Report: On or before
April 1 of each year during the term of this Ordinance, excluding the year
in which the Ordinance becomes effective, Cable Operator shall file with the
City a copy of its most recent operation and system performance. The following
information regarding the System shall at least be provided:
current gross revenue statement for the immediately preceding fiscal year
certified by a financial officer or Cable Operator.
most recent S.E.C. Form 10‑K, filed by the Cable Operator if such
filing is required to be made by Cable Operator.
description of all tiers or levels of service being offered together with a
description of any changes made in any service during the reporting year.
compilation setting for the results of any Subscriber survey.
current copy of the Subscriber service information.
current list of names and addresses of each principal. For the purposes of
this requirement, the term principal means any person, firm, corporation,
partnership or joint venture, other entity who or which owns or controls one
percent (1%) or more of the voting stock (or any equivalent interest of a
partnership or joint venture of Cable Operator), regardless of the ownership of
compilation summarizing the Complaints received during the reported year, by
category, number of each category, and a discussion of any unresolved
description of how pay‑per‑view programming is made available to
Basic Service only Subscribers.
Operator shall prepare and furnish to the City, at the times and in the form
prescribed, such additional reports with respect to its operations, affairs,
transactions or property, which are reasonably necessary for the administration
and enforcement of this Ordinance.
Operator shall maintain on file with the City at all times a current map or set
of maps to scale showing the System and all equipment installed or in place in
streets and other public places. The maps shall be updated on a semi‑annual
basis if changes have been made.
15. MISCELLANEOUS PROVISIONS
acceptance this Ordinance shall bind and benefit the parties hereto and their
respective heirs, beneficiaries, administrators, executors, receivers,
trustees, and the promises and obligations herein shall survive the expiration
(1) If any term, condition,
or provision of this Ordinance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof shall be valid in all other respects and
continue to be effective. In the event of a subsequent change in Applicable
Law so that the provision which had been held invalid is no longer invalid,
said provision shall thereupon return to full force and effect without further
action by the Locality and shall thereafter be binding on the Cable Operator
and the Locality.
the Cable Operator believes that the terms of this Ordinance or any Locality
law or regulation conflict with any state or federal law or regulation, the
Cable Operator shall notify the Locality Manager immediately upon learning of
with Federal and State Laws: The Cable Operator shall comply with all
applicable federal, state, and local laws and regulations.
Party Bears Its Own Costs: Unless otherwise expressly provided in this
Ordinance, all acts that the Cable Operator is required to perform must be
performed at the Cable Operators own expense. Unless otherwise expressly
provided in this Ordinance, all acts that the Locality is required to perform
must be performed at the Localitys own expense.
(e) Force Majeure: The Cable Operator shall not be deemed in
default of provisions of this Ordinance or Applicable Law where such default is
due to Force Majeure, provided that the Cable Operator takes immediate and
diligent steps to bring itself back into compliance and to comply as soon as
possible under the circumstances with the Franchise without unduly endangering
the health, safety, and integrity of the Cable Operator's employees or
property, or the health, safety, and integrity of the public, Public
Rights-of-Way, public property, or private property.
(f) Third Party Beneficiaries: The
Locality and the Cable Operator acknowledge and agree that no one is a
third-party beneficiary of the Franchise granted under this Ordinance.
(g) No Evasion: The Cable Operator shall not take any action to
evade any provision of this Ordinance. This provision shall be read to
prohibit, among other things, the Cable Operator from requiring any Subscriber
to waive any right (including without limitation privacy rights) as a condition
of obtaining service.
(h) Governing Law: This
Franchise Ordinance shall be governed in all respects by the law of the Commonwealth of Virginia.
(i) Notices: Unless otherwise expressly stated herein,
notices required under this Franchise Ordinance shall be mailed first class,
postage prepaid, to the addressees below. Each party may change its designee
by providing written notice to the other party.
(1) Notices to the Cable Operator shall be mailed
Cavalier IP TV,
2134 W. Laburnum Avenue
Richmond, VA 23227
Attn.: Brad Evans, CEO
a copy to:
Cavalier IP TV, LLC
2134 W. Laburnum Avenue
Richmond, VA 23227
Attn.: General Counsel
the Locality shall be mailed to:
22 Lincoln Street
Hampton, VA 23669
(2) The Cable Operator shall at all times keep the
Locality advised as to which individual(s) are authorized to act on behalf of
the Cable Operator and whose acts will be considered to bind the Cable
(j) Time of Essence: In
determining whether the Cable Operator has substantially complied with this
Ordinance, the parties agree that time is of the essence.
(k) Captions and References:
The captions and headings of sections
throughout this Ordinance are intended solely to facilitate reading and
reference to the sections and provisions of this Ordinance. Such captions
shall not affect the meaning or interpretation of this Ordinance.
and Consent: The grant of this Ordinance and Cable
Operators acceptance thereof is freely and voluntarily given by each of the
parties, without any duress or coercion, and after each party has consulted
with its counsel. Each party and its counsel have participated fully in the
review and revision of this Ordinance, and any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
apply in interpreting this Ordinance. Each party hereto has carefully and
completely read all of the terms and provisions of this Ordinance, and
acknowledges that, to the best of its knowledge, each provision is lawful and
This Ordinance shall be signed by the Mayor or acting Mayor and attested by the
City Clerk. The Ordinance shall be published in accordance with the
requirements of the City and Applicable Law and shall take effect retroactively
to December 15, 2006, unless within thirty (30) days after adoption by
City, Cable Operator has failed to provide its written acceptance to the City
or has notified City that it is withdrawing its request for an Ordinance Cable
Franchise and it has not commenced construction or the offering of its Cable
Service in City.
(b) Time of
the event Cable Operator has not furnished City with its written acceptance
within or has notified City of its request to withdraws the request it made for
an Ordinance Cable Franchise as required for acceptance described in
Section 16(a), this Ordinance and all of the rights, duties, and
responsibilities of City and the Franchise granted by this Ordinance shall be
null and void.
Operator shall be bound by all the terms and conditions herein. Cable Operator
shall provide all services and offerings specifically set forth herein to
provide Cable Operator Services within the City.
Operator shall deliver to the City a certified resolution evidencing its power
and authority to comply with this Ordinance with its written acceptance as
required in Section 16(a). Additionally, at this same time, Cable
Operator shall deliver to City all payments required by its Application and
such bonds and insurance certificates as may also be required by this
Ordinance. Such documents shall also describe the officers authorized to act
on behalf of Cable Operator.
Adopted by the City Council of the City of
Hampton, Virginia at a regular
meeting held on ,
(NOTE: ATTACH MAP
PROVIDED BY CAVALIER)
SUMMARY OF GROSS
REVENUES SUBJECT TO FRANCHISE FEE
FOR: HAMPTON, VIRGINIA FOR YEAR: ________
Basic Cable Service
Expanded Basic Service
Pay Per View
Net Advertising Revenue
Home Shopping Commissions
Digital Video Recorder
Bad Debt Allowance
This Exhibit shall be
annually changed to reflect current services subject to Franchise Fees and as
permitted to the maximum extent permissible by valid Applicable Law and the
CUSTOMER SERVICE STANDARDS
(a) These standards sets forth minimum
customer service standards that a Cable Operator must satisfy. In addition,
the Cable Operator shall at all times satisfy any additions or stricter
requirements established by FCC regulations, or other applicable federal,
state, or local law or regulation, as the same may be adopted or amended from
time to time.
(b) Each Cable Operator shall maintain an
office at a convenient location that shall be open during normal business hours
to allow subscribers to request service, pay bills, and conduct other business.
Normal business hours means those hours during which most similar businesses
in the community are open to serve customers, i.e., Monday through Friday, 9:00
a.m. to 5:00 p.m. In all cases, normal business hours must include some
evening hours, at least one (1) night per week, and some weekend hours.
(a) Trained company representatives shall
be available to respond to customer telephone inquiries during normal business
(b) At least one (1) person in
responsible charge of a Cable Operators operations shall be available by local
telephone during such hours as the business office is closed, and the telephone
number of such person shall be supplied in advance to the Localitys designated
administrator and to the Localitys police and fire divisions. Further, an
access line will be available twenty‑four (24) hours per day, seven (7)
days per week with after‑hour connection for messages to be responded to
by a trained representative the next business day.
(c) A Cable Operator shall use its best
efforts to comply with the following standards. A Cable Operator shall not be
subject to liquidated damages for noncompliance with these standards if, under
normal operating conditions, the standards are met at least ninety percent
(90%) of the time, measured quarterly. For purposes of this calculation and
all pertinent reports, a Cable Operator may not omit data for conditions other
then normal operating conditions unless the Cable Operator has explained to the
Locality the time period and the conditions involved, and the Locality has approved
(1) Telephone answering time shall not
exceed thirty (30) seconds, and the time to transfer the call to a customer
service representative (including hold time) shall not exceed an additional
thirty (30) seconds.
customer will receive a busy signal less than three percent (3%) of the time.
(d) A Cable Operator shall obtain and
maintain sufficient telephone lines and staffing to meet the requirements of
this article. A Cable Operator shall not block incoming calls or otherwise use
equipment or procedures that would result in an inaccurate account of all calls
made to the Cable Operator; any such practice shall constitute fraud and shall
be an independent violation of the customer service standards.
3. Installations and Service Calls.
(a) A Cable Operator shall respond to
service calls and complaints promptly. A Cable Operator shall use its best
efforts to comply with the following standards. A Cable Operator shall not be
subject to liquidated damages for noncompliance with these standards if, under
normal operating conditions, the standards are met at least ninety-five percent
(95%) of the time, measured quarterly.
Cable Operator shall commence repairs for service interruptions affecting more
than one hundred (100) subscribers within two (2) hours after the Cable
Operator becomes aware of the interruption, including Saturdays, Sundays, and
(2) A Cable Operator shall
commence repairs for all other service interruptions within twenty-four (24) hours
after the Cable Operator becomes aware of the interruption, including
Saturdays, Sundays, and legal holidays.
(3) A Cable Operator shall
commence work on all requests for service other than service interruptions by
the next business day after it receives the request for service or otherwise
becomes aware of the need for service.
(b) All service for which a completion
time is not otherwise specified must be completed within three (3) days from
the date of the initial request, unless, for reasons beyond the Cable
Operator's control, the work could not be completed in those time periods even
with the exercise of all due diligence, in which case the Cable Operator shall
complete the work in the shortest time possible. The failure of a Cable
Operator to hire sufficient staff or to properly train its staff shall not justify a Cable Operator's failure to comply with this provision.
(c) The Cable Operator shall investigate
subscriber complaints referred by the Locality within five (5) business days.
The Cable Operator shall notify the Locality of those matters that necessitate
an excess of five (5) business days to resolve, but those matters must be
resolved within fifteen (15) days of the initial complaint. The Locality may
require reasonable documentation to be provided by the Cable Operator to
substantiate the request for additional time to resolve the problem. For
purposes of this Section, resolve means that the Cable Operator shall perform
those actions, which, in the normal course of business, are necessary to
investigate the Customers complaint and advise the Customer of the results of
(d) Appropriate records shall be made of
service calls, showing when and what corrective action was completed. Such
records shall be available to the Locality during normal business hours and
retained for not less than three (3) years.
(e) A Cable Operator shall perform service
calls, installations, and disconnects at least from 8:00 a.m. to 6:00 p.m.
Monday through Friday and 8:00 a.m. to 5:00 p.m. Saturday. In addition,
maintenance service capability enabling the prompt location and correction of
major system malfunctions shall be available seven (7) days a week, twenty-four
(24) hours a day, including Saturdays, Sundays, and holidays.
(f) The appointment window for
installations, service calls, and other installation activities shall be either
a specific time or, at maximum, a four (4) hour time block during the time from
8:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 5:00 p.m.
Saturday. Where a subscriber is unable to arrange for a service call or
installation during that period, a Cable Operator shall also schedule service
and installation calls at reasonable times outside that period.
(g) A Cable Operator may not cancel an
appointment with a subscriber after 6:00 p.m. on the business day preceding the
appointment, unless the appointment is for a Monday, in which case the Cable
Operator may not cancel after 5:00 p.m. on Saturday. If a Cable Operator's
representative is running late for an appointment with a subscriber and will
not be able to keep the appointment as scheduled, the subscriber will be
contacted, and the appointment rescheduled, as necessary, at a time which is
reasonably convenient for the subscriber.
(h) A Cable Operator shall afford
subscribers a three (3)-day right of rescission for ordering service over the
cable system, except that such right of rescission shall end upon initiation of
installation, whether physically or electronically, on the subscribers
premises or upon provision of service to the
(i) Under normal operating conditions,
billing inquiries and requests for service, repair, and maintenance not
involving service interruptions must be acknowledged by a trained customer
service representative within twenty-four (24) hours, or prior to the end of
the next business day, whichever is earlier. A Cable Operator shall respond to
all other inquiries within five (5) business days of the inquiry.
(j) Except as federal law may
specifically require, no charge shall be made to the subscriber for repairs or
maintenance of Cable Operator-owned equipment or facilities, except for the
cost of repairs to the Cable Operator's equipment or facilities where it can be
shown that the equipment or facility was damaged by a subscriber.
(k) With regard to mobility-limited
subscribers, upon subscriber request, a Cable Operator shall arrange for pickup
and/or replacement of converters or other Cable Operator equipment at the
subscriber's address or by a satisfactory equivalent (such as the provision of
a postage-prepaid mailer).
(l) All personnel, agents and
representatives of a Cable Operator, including subcontractors that have
occasion to deal directly with subscribers in the field shall carry photo
identification badges, to be displayed upon request, when acting on behalf of
the Cable Operator.
(m) A Cable Operator shall provide advance
notice, in light of the circumstances, prior to entry whenever desiring to
enter any private property within the Locality. Work performed in easements
and rights-of-way during system outage periods is exempted.
(a) When a subscriber is connected or
reconnected to a cable system, and at any time upon request, the Cable Operator
shall provide each subscriber with written information concerning the
following. Copies of all such materials provided to subscribers shall also be
provided to the Locality.
(1) A written description of products and
services offered, including a schedule of rates and charges, a list of channel
positions, and a description of programming services, options, and conditions;
(2) A written description of the Cable
Operator's installation and service maintenance policies, delinquent subscriber
disconnect and reconnect procedures, and any other of its policies applicable
to its subscribers;
(3) Notice regarding subscribers' privacy
rights pursuant to 47 U.S.C. 551;
(4) Notice regarding subscribers rights
relating to home wiring.
(b) The Cable Operator shall provide to
all subscribers and to the Locality at least thirty (30)
days' written notice before the implementation of any change in rates,
services, channel positions, business hours, or legal holidays. Such notice
shall state the precise amount of any rate change and briefly explain in
accurate and readily understandable fashion the cause of the rate change (e.g.,
inflation, changes in external costs or the addition/deletion of channels).
When the change involves the addition or deletion of channels, each channel
added or deleted must be separately identified.
(c) All Cable Operator promotional
materials, announcements, and advertising of residential cable service to subscribers
and the general public, where price information is listed in any manner, shall
clearly and accurately disclose price terms. In the case of pay-per-view or
pay-per-event programming, all promotional materials must clearly and
accurately disclose price terms and in the case of telephone orders, a Cable
Operator shall take appropriate steps to ensure that price terms are clearly
and accurately disclosed to potential customers before the order is accepted.
(a) Bills shall be clear, concise, and
understandable, and shall not be such as to mislead a reasonable subscriber as
to any matter reflected on the bill. Bills must be fully itemized with
itemizations including, but not limited to, basic and premium service charges
and equipment charges. Bills shall clearly delineate all activity during the
billing period, including optional charges, rebates, and credits.
(b) Refund checks or credits to
subscribers shall be issued promptly, but no later than the later of
(1) The subscriber's next billing cycle, or thirty
(30) days, following resolution of the refund request, whichever is earlier; or
(2) The return of all equipment supplied by the Cable
Operator, if service is terminated.
(c) A Cable Operator's first billing
statement after a new installation or service change shall be prorated as
appropriate and shall reflect any security deposit.
(1) The account of
any subscriber shall be credited a prorated share of the monthly charge for
service, upon the subscriber's reasonably prompt request, whenever:
(A) The subscriber is without service for a period
that exceeds twelve (12) hours during any twenty-four (24) -hour period; or
(B) Service is substantially impaired for any reason
for a period that exceeds twelve (12) hours during any twenty-four (24) -hour
(2) The credits required under subsection
(d)(1) shall not apply if:
(A) It can be documented that a subscriber seeks a
refund for an outage or impairment that the subscriber caused; or
(B) A planned outage occurred between the hours of
12:00 midnight and 6:00 a.m.
(3) Credits for service shall be issued no later than
the subscriber's next billing cycle following the determination that a credit
(e) No charge may be made for any service
or product that the subscriber has not affirmatively indicated it wishes to
receive. Payment of the regular monthly bill does not in and of itself
constitute such an affirmative indication.
security deposit and/or other funds due the subscriber shall be refunded on
disconnected accounts after any customer premises equipment provided by the
Cable Operator has been recovered by the Cable Operator. The refund must be
made within thirty (30) days or by the end of the next billing cycle, whichever
is earlier, from the date disconnection was requested (or, if later, the date
on which any customer premises equipment provided by the Cable Operator is returned).
(b) A Cable Operator shall provide at
least three (3) days written notice prior to discontinuance of service due to
nonpayment and shall not terminate for nonpayment where the payment relates to
service not yet provided. Where a Cable Operator has improperly discontinued
service, it shall provide free reconnection.
(c) A Cable Operator may immediately
disconnect a subscriber if the subscriber is damaging or destroying the Cable
Operator's cable system or equipment. After disconnection, the Cable Operator
shall restore service after the subscriber provides adequate assurance that it
has ceased the practices that led to disconnection, and paid all proper fees
and charges, including any reconnect fees and amounts owed the Cable Operator
for damage to its cable system or equipment.
(d) A Cable Operator may also disconnect
a subscriber that causes signal leakage in excess of federal limits.
Disconnection may be effected after five (5) days' written notice to the
subscriber, if the subscriber fails to take steps to correct the problem.
Alternatively, a Cable Operator may disconnect a subscriber without notice
where signal leakage is detected originating from the subscriber's premises in
excess of federal limits, provided that the Cable Operator shall immediately
notify the subscriber of the problem and, once the problem is corrected,
reconnect the subscriber.
A Cable Operator shall keep such records as are
necessary to show compliance with these customer service standards and FCC
customer service standards.
For purposes of these customer service standards the phrase
normal operating conditions means those Cable Services or conditions that are
within the control of Cable Operator. Those conditions, which are ordinarily
within the control of 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 System. Those conditions that
are not within the control of Cable Operator include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages, vandalism, public works projects for which no advanced notice is
given, and severe or unusual weather conditions.
the regular meeting of the City Council of the City of Hampton, Virginia held
on April 11, 2007.
Signed by ____________________________ Date
Ross A. Kearney, II, Mayor
Attested by ____________________________ Date _________________
Katherine K. Glass
Clerk of the Council