ࡱ> #` bjbj\.\. 4>D>Dx )))8*$,*d .********-------$.hc1r-*****-**-8-8-8-*^**-8-*-8-8-8-** 4D)+8---0 .8-1+ 18-18-T**8-*****--,^*** .****$))  Chapter 9.1 CABLE TELEVISION* __________ * Cross References: Cable television advisory committee, 2-311 et seq.; tax on purchase of cable television service, 37-345 et seq. __________ Sec. 9.1-1. Title. Sec. 9.1-2. Definitions. Sec. 9.1-3. Authority to grant franchises. Sec. 9.1-4. Application for franchise. Sec. 9.1-5. Franchise renewals. Sec. 9.1-6. Acceptance and duration of franchise. Sec. 9.1-7. Limitation upon grant. Sec. 9.1-8. Construction of system. Sec. 9.1-9. Repair of streets and public ways. Sec. 9.1-10. Removal or abandonment of franchise property. Sec. 9.1-11. Changes required by public improvements. Sec. 9.1-12. System maintenance. Sec. 9.1-13. Local office required for addressing complaints. Sec. 9.1-14. Additional services; route maps; compliance with national standards. Sec. 9.1-15. Franchise fee. Sec. 9.1-16. Inspection of property. Sec. 9.1-17. Liability and indemnification. Sec. 9.1-18. Termination of franchise. Sec. 9.1-19. Compliance with laws, rules and regulations. Sec. 9.1-20. New developments. Sec. 9.1-21. Costs of publication. Sec. 9.1-22. Severability. Sec. 9.1-23. Confidentiality. Sec. 9.1-1. Title. This chapter shall be entitled "Cable Television Regulations." (Ord. No. 1139, 6-14-95) Sec. 9.1-2. Definitions. For the purpose of this chapter, the following, terms, phrases, words, derivations and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. Applicant means any person that applies for a franchise under this chapter. Application or proposal are synonymous for the purposes of this chapter. An application or proposal means the process by which the applicant submits a request and indicates a desire to be granted a franchise for all, or a part, of the city. An application or proposal includes all written documentation, and verbal statements and representations, in whatever form or forum, made by an applicant to the council concerning the construction, detailed description of services to be provided, the area to be served within the city, the portion of right-of-way to be used, rendering of services and the manner thereof, rates and charges, maintenance, or any other matter pertaining to the proposed communications system. City executive means the city manager, the city clerk or other designation of the city's chief executive officer or any designee thereof. Communications system means: (1) A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment; (2) A facility consisting of infrared transmission or point-to-point transmission (as permitted by law); or (3) Any functional equivalent that is designed to provide multichannel service which includes video, voice or data programming and which is provided to multiple subscribers within the city. A communications systems shall include, but not be limited to, a facility used to provide cable television service (including video or other programming service); data or nonvideo programming transportation; telecommunications service; vehicle location service; security monitoring service; paging service; conventional mobile radio telephone service; cellular telecommunications service; or personal communications network service. A communications system shall not include: (a) Any part of a state or FCC licensed local government local exchange telephone company, or any part of a federal-, state-, county- or local government-owned telecommunications systems system; (b) A facility that serves only to retransmit the television signals of one or more broadcast stations; (c) A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses use any public rights-of-way; (d) A facility or a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a communications system (other than for purposes of 47 U.S.C. 541) to the extent such facility is used in the transmission of video, voice, or data programming or service directly to subscribers; or (e) Any facilities of any electric utility used solely for operating its electric utility. (a) a system that serves fewer than twenty subscribers, (b) a facility that serves only to retransmit the television signals of one or more television broadcast stations, (c) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way, (d) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934,  HYPERLINK "http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS201&FindType=L&AP=&mt=Virginia&fn=_top&sv=Split&vr=2.0&rs=WLW5.12" \t "_top" 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, (e) any facilities of any electric utility used solely for operating its electric systems, or (f) any portion of a system that serves fewer than fifty subscribers in any locality, where such portion is a part of a larger system franchised in an adjacent locality. FCC means the Federal Communications Commission, or a designated representative. Franchise means the nonexclusive right and authority to construct, maintain and operate any part of a communications system described in the application, through use of the public streets, public utility easements or other public rights-of-way or public places in the city. The franchise shall describe in detail all requirements applicable to the franchise, including all applicable requirements of federal, state and local laws. Franchise property means all property owned, installed or used under authority of this chapter by a franchisee. Franchisee means any person to whom a franchise is granted pursuant to this chapter and any lawful successor or assignee of the original franchisee. Person means any natural person and all domestic and foreign corporations, closely held corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, businesses, common law trusts, societies and/or any other legal entity. Street means the surface, the air space above the surface, and the area below the surface of any public street, communications or public utility easement, or other public rights-of-way or public places. Subscriber means any person or entity receiving service provided by a franchisee pursuant to the authority of a franchise. In the event the meaning of any word or phrase not defined herein is uncertain, the definitions contained in applicable FCC rules and regulations shall apply. (Ord. No. 1139, 6-14-95) Sec. 9.1-3. Authority to grant franchises. (a) The council is empowered and authorized to issue, in accordance with the City Charter, nonexclusive franchises to install, construct, operate and maintain communications systems in the city's streets, as well as to regulate these activities. (b) The council has determined that the granting of franchises for communications systems in the city will promote the public interest, enhance the health and welfare and safety of the public and stimulate commerce by assuring that: (1) Communications systems are responsive to the needs and interests of the city and its residents; (2) Communications systems provide, and are encouraged to provide, the widest diversity of information and service to the public; and (3) There is an orderly process for the granting or renewal of franchises, and oversight of the services provided pursuant to franchises. (c) No person shall construct, operate, maintain, or continue to operate or maintain a communications system which occupies any part of the city's streets without the authority of a franchise granted by the city pursuant to this chapter. (d) No provision of this chapter shall be deemed or construed to require the granting of a franchise by the city. (Ord. No. 1139, 6-14-95) Sec. 9.1-4. Application for franchise. (a) Each applicant for a franchise to construct, operate or maintain any communications system in the city shall file an application with the council in a form and containing such information as is requested by the city. The contents of such application may vary, according to the nature of the proposed communications systems,; however, an application shall contain, at a minimum, the following information: (1) The name, address and telephone number of the applicant. If the applicant is a partnership, the home and business address of each partner shall also be set forth. If the applicant is a corporation, the application shall state the names and addresses of its directors, main officers, major stockholders and associates and the names and addresses of parent or subsidiary companies. (2) A statement setting forth in its entirety any and all agreements and understandings, whether formal or informal, written, oral or implied, existing or proposed to exist between the applicant and any person who proposes to have an ownership interest with respect to the proposed franchise or to the proposed communications system. If a franchise is granted to a person acting as a representative of another person and such information is not disclosed in the original application, the franchise shall be deemed void and of no force and effect. (3) Financial statements, as determined by the council, prepared by a certified public accountant or person otherwise satisfactory to the council, showing the applicant's financial status and financial ability to complete the construction and installation of the proposed communications system and/or continue the operation of the existing communications system. (4) A statement describing the communications system and specifying the type and capacity of the communications system proposed to be construed, installed, maintained or operated by the applicant and the proposed or existing location of the communications system. (5) A description of all previous experience of the applicant in providing communications system service and in related or similar fields. (6) Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the council, or by any provision of any other ordinance of the city. (b) Prior to the issuance of a franchise, the council shall hold a public hearing, following reasonable notice to the public, at which every applicant and its proposal shall be examined and the public and all interested parties persons afforded a reasonable opportunity to be heard. Proposed franchises shall bear any publication costs. (c) In making any determination hereunder as to any application, the council shall consider the impact on the city's right-of-way with the addition of the proposed communications system, the needs of the city, and the legal, technical and financial qualifications of the applicant. The council shall give due consideration to the quality of the service proposed; experience, character, background and the financial responsibility of any applicant and its management and owners; willingness and ability to abide by policy conditions; franchise limitations and requirements; and any other considerations deemed pertinent to the council for safeguarding the interest of the city and the public. The council, in its discretion, shall determine the award of any franchise on the basis of these and other relevant considerations and without competitive bidding. (d) The city may require the applicant for an initial franchise to reimburse the city for its reasonable costs to review the application, including costs for technical assistance to aid the city in understanding the nature and effect of the application. (Ord. No. 1139, 6-14-95) Sec. 9.1-5. Franchise renewals. Franchise renewals shall be according to applicable local, state and federal law, including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended. Based on receipt of a request for renewal and applicable local, state and federal law, the city shall have the right to establish procedures for review, approve any such renewal request, and require reimbursement of reasonable costs as may be permitted by law. (Ord. No. 1139, 6-14-95) Sec. 9.1-6. Acceptance and duration of franchise. (a) Any franchise granted pursuant to this chapter shall become effective in accordance with the terms and conditions approved by the council; provided, that a franchisee has filed with the city clerk a written instrument addressed to the council accepting the franchise, within the time specified by the city council, and agreeing to comply with all provisions of this chapter and the franchise. (b) The term of a franchise shall be stated in the franchise granted, but shall in no event exceed fifteen (15) years. (Ord. No. 1139, 6-14-95) Sec. 9.1-7. Limitation upon grant. (a) No privilege or exemption is granted or conferred by the issuance of a franchise pursuant to this chapter, except as specifically prescribed in the franchise. (b) Any franchise granted pursuant to this chapter is a privilege personal to the original franchisee. It cannot in any event be sold, transferred, leased, assigned or disposed of as a whole or in part, or otherwise, without prior consent of the city, and then only under such conditions as may be prescribed in such consent; provided, however, that no such consent shall unreasonably be withheld. This prohibition shall apply to the sale or transfer of all or a majority of a franchisee's assets, merger (including any parent and its subsidiary corporation), consolidation, creation of a subsidiary corporation, or sale or transfer of stock in a franchisee so as to create a new controlling interest. The term "controlling interest" is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. Notwithstanding anything to the contrary, no approval shall be required for a transfer or assignment of a franchise to a person controlling, controlled by, or under the same common control as a franchise. (Ord. No. 1139, 6-14-95) Sec. 9.1-8. Construction of system. (a) Permits and licenses. Within one hundred eighty (180) days after acceptance of any franchise, the franchisee shall obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier franchises, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of the communications system or associated facilities. (b) Time for commencement and completion of construction. Within ninety (90) days after obtaining all necessary permits, licenses and authorizations, including rights of access to poles and conduits, the franchisee shall commence construction and installation of the communications system. The construction and installation of the communications system within the territorial limits of the city shall be on a reasonable and equitable basis. The completion of the installation and construction of the communications systems shall be pursued with reasonable diligence, so that service to the area covered by the franchise shall be provided within two (2) years after construction has begun. Significant construction shall be accomplished within one year after the franchisee has obtained all necessary permits, licenses and authorizations, including right of access to poles and conduits. (c) Extension of time. By resolution, the council, in its discretion, may extend the time for construction, installation and operation in the event the franchisee, acting in good faith, experiences delays by reason of circumstances beyond its control. (Ord. No. 1139, 6-14-95) Sec. 9.1-9. Repair of streets and public ways. (a) Any and all streets and public ways in the city which are disturbed or damaged during the construction, operation, maintenance or reconstruction of a communications system shall be repaired by the franchisee at its expense and to a condition as good as that prevailing before such work. (b) Upon the failure, refusal or neglect of the franchisee to cause any work or other act required by law, this chapter or the franchise to be properly completed or performed, after notice to the franchisee, the council may cause this work or other activity to be completed or performed, in whole or in part, to the satisfaction of the city. Upon so doing, the city shall submit to the franchisee an itemized statement of the cost thereof. The franchisee shall, within thirty (30) days after receipt of the statement, pay to the city the entire amount thereof. (Ord. No. 1139, 6-14-95) Sec. 9.1-10. Removal or abandonment of franchise property. (a) In the event that the use of any franchise property is discontinued for any reason for a continuous period of twelve (12) months, any franchise property has been installed in a street without complying with the requirements of this chapter and a franchise, or the franchise has been terminated, canceled or has expired, the franchisee, at its expense, shall, at the demand of the city, remove promptly from the streets all franchise property other than any which the city may permit to be abandoned in place. In the event of any such removal, the franchisee shall promptly restore, to a condition as nearly as possible to its prior condition, the street or other public places in the city from which franchise property has been removed. (b) Franchise property to be abandoned in place shall be abandoned in the manner prescribed by the city. Upon the permanent abandonment of any franchise property in place, the franchisee shall delivery deliver to the city executive an instrument transferring to the city the ownership of the franchise property abandoned. It shall be in the council's discretion to accept or reject such transfer of franchise property. (Ord. No. 1139, 6-14-95) Sec. 9.1-11. Changes required by public improvements. The franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, alley, or public place, or remove from any street, alley or public place any franchise property when required by the city by reason of traffic conditions, public safety, street vacation, freeway grade, installation of sewers, drains and tracts, or any other type of construction or improvement, including, but not limited to, placement of structures and improvements underground by governmental agencies when acting in a governmental or proprietary capacity; provided, however, that the franchisee shall in all such cases have the privileges and be subject to the obligations to abandon franchise property in place, as provided in section 9.1-9. (Ord. No. 1139, 6-14-95) Sec. 9.1-12. System maintenance. The franchisee shall: (1) Put, keep and maintain all parts of the communications system in good condition throughout the entire period of the franchise. (2) Render efficient service, make repairs promptly and interrupt service to subscribers only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice given to subscribers and the city executive twenty-four (24) hours in advance, and shall occur during periods of minimum use of the communications system. (3) Upon request by the council, make a demonstration satisfactory to the council that the technical quality of the services provided by the communications system meets any and all standards set forth in the franchise and any applicable regulations of the FCC. (Ord. No. 1139, 6-14-95) Sec. 9.1-13. Local office required for addressing complaints. Each franchise shall require that the franchisee maintain a local business office, or agent, which subscribers may telephone during regular business hours, without incurring added message or toll charges, so that complaints regarding the service provided pursuant to a franchise may be promptly reported to the franchisee. Should a subscriber have an unresolved complaint regarding such service, the subscriber shall be entitled to file its complaint with the city executive, who has primary responsibility for the continuing administration of the franchise and the procedures for resolving complaints, and thereafter to meet jointly with a representative of the city and a representative of the franchisee within thirty (30) days to fully discuss and resolve such matters. The franchisee shall notify each subscriber, at the time of initial subscription or contract for service with the franchisee, of the procedures for reporting and resolving such complaints. (Ord. No. 1139, 6-14-95) Sec. 9.1-14. Additional services; route maps; compliance with national standards. (a) [Additional services.] As permitted by state and federal law, each franchise may require a franchisee to provide facilities and services to public schools and community colleges within the city, and to fire and police stations and other buildings owned and controlled by the city used for public nonresidential purposes. (b) System maps and layout. The franchisee shall have, at all times, up-to-date route maps showing the location of the communications system adjacent to the streets. The franchisee shall make all maps available for review by the appropriate city personnel. (c) System construction and equipment standards. The communications system shall be installed and maintained in accordance with standard good engineering practices and shall conform, when applicable, with the National Electrical Safety Code and the FCC's rules and regulations. (Ord. No. 1139, 6-14-95) Sec. 9.1-15. Franchise fee. (a) As permitted by state and federal law, a franchisee may be required to pay to the city a franchise fee, as set forth in the franchise, in compensation for the use of the city's streets pursuant to the franchise, and to reimburse the city for its costs associated with the evaluation of an application and grant of franchise. (b) If a franchise requires payment of a franchise fee, each such franchise shall authorize the city to require an audit, at the franchisee's expense, for of the franchisee's financial records and accountings relating to the franchise fee. The franchisee shall furnish the city, upon reasonable request, such data as needed to conduct such audit in accordance with generally accepted accounting principles. (c) The city and its representatives shall have the right to inspect the franchisee's financial records during normal business hours to determine whether the franchisee has properly paid all sums due to the city pursuant to the terms of the franchise. (d) Any neglect, omission or refusal of the franchisee to cooperate with the city in reviewing its financial information for the purpose of auditing payment of the franchise fee, or to pay the franchisee fee in full, at the time and in the manner provided in the franchise, which neglect, omission or refusal shall continue for more than thirty (30) days following written notice thereof to the franchisee from the city, shall be grounds for the termination of this franchise, as provided for in section 9.1-17 9.1-18 hereof. (Ord. No. 1139, 6-14-95) Sec. 9.1-16. Inspection of property. At all reasonable times, the franchisee shall permit examination by any duly authorized representative of the city of all franchise property, together with any appurtenant property of the franchisee situated within or without the city. (Ord. No. 1139, 6-14-95) Sec. 9.1-17. Liability and indemnification. (a) The franchisee shall pay all damages and penalties which the city may legally be required to pay as a result of granting a franchisee's franchise. (b) The franchisee shall pay all expenses incurred by the city in defending itself with regard to all damages and penalties mentioned above. The expenses shall include all costs, such as attorney's fees. (c) In order for the city to assert the rights to be indemnified, defended and held harmless, the city must: (1) Promptly notify the grantee of any claim or legal proceeding which gives rise to such right; (2) Afford the grantee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of such claim or proceeding; unless, however, the city, in its sole discretion, determines that its interests cannot be represented in good faith by the grantee; and (3) Fully cooperate with the reasonable requests of the grantee, at the grantee's expense, in its participation in, and control, compromise, settlement or resolution, or other disposition of, such claim or proceeding subject to subsection (2) above. (d) The franchisee shall be required to secure and maintain in force, for the duration of the franchise, general comprehensive liability insurance insuring against all damages charged to the city or the franchisee resulting from the installation, development, maintenance or expansion of a franchisee's communications system. The city shall be named in all such policies as a co-insured, or added thereon by endorsement as a named insured. A certificate of insurance for each policy, as well as a copy of each policy, shall be filed with the city clerk. Each certificate shall provide that if the policy it covers shall be canceled by the insurance company, or the franchisee during the term of the policy, thirty (30) days' written notice prior to the effective date of cancellation shall be given to the council. (Ord. No. 1139, 6-14-95) Sec. 9.1-18. Termination of franchise. (a) The city may terminate any franchise granted pursuant to this chapter in the event of the failure, refusal or neglect by the franchisee to do or comply with any material requirement or limitation contained in this chapter or in the franchise. (b) Prior to termination of a franchise, the city shall make written demand that the franchisee do or comply with the requirement, limitation, term, condition, rule or regulation of which the franchisee is in default. If the failure, refusal or neglect of the franchisee to comply continues for a period of thirty (30) days following such written demand, a request for termination of the franchise may be placed upon the council meeting agenda. The city shall given written notice to the franchisee, at least ten (10) days prior to the date of such council meeting, of its intent to terminate the franchise, and the time and place of the meeting. (c) The council shall consider its intent to terminate the franchise and shall hear any persons interested therein, and shall determine whether or not any failure, refusal or neglect by the franchisee to comply with the terms and conditions of this chapter or the franchise was with just cause. (d) If such failure, refusal or neglect by a franchisee to comply was with just cause, the council shall direct the franchisee to comply with the terms and conditions of this chapter or the franchise within such time and in such manner and upon such terms and conditions as are determined by the council. (e) If the council shall determine such failure, refusal or neglect by a franchisee to comply was without just cause, then the council may pass its ordinance declaring that the franchise of such franchisee shall be terminated and forfeited, unless there by is compliance by the franchisee within such period as the council may establish in such ordinance. (f) The termination and forfeiture of any franchise shall in no way affect any of the rights of the city under the franchise, this chapter, or any provision of law. (g) No sanction shall be invoked or franchise revoked where the failure or delay was due to acts of God or events beyond the reasonable control of the franchise. (Ord. No. 1139, 6-14-95) Sec. 9.1-19. Compliance with laws, rules and regulations. Any of the provisions or terms of this chapter may be amended by the council in order to be made consistent with any new or amended law, rule or regulation of governmental authorities with jurisdiction to regulate communications systems. Where amendment to laws, rules or other regulatory standards requires modification of any franchise granted pursuant to this chapter, the modifications necessary to effect compliance with such laws, rules or regulations shall be made within one year of the effective date of such change, or at the time of renewal of the franchise, whichever occurs first. (Ord. No. 1139, 6-14-95) Sec. 9.1-20. New developments. It shall be the policy of the city to liberally amend this chapter, upon application of a franchisee, when necessary to enable the franchisee to take advantage of any developments in the field of communications systems which will afford an opportunity to more effectively, efficiently, or economically serve its subscribers. (Ord. No. 1139, 6-14-95) Sec. 9.1-21. Costs of publication. The franchisee shall assume any cost of publication of its franchise, as such publication may be required by law, and such is payable upon the franchisee's filing of acceptance of the franchise. (Ord. No. 1139, 6-14-95) Sec. 9.1-22. Severability. If any section, subsection, sentence, clause, phrase or portion of this chapter, or any franchise granted under this chapter hereunder, is for any reason held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof or thereof. (Ord. No. 1139, 6-14-95) Sec. 9.1-23. Confidentiality. All information of a financial or personal nature provided to the council for the purposes of this chapter or a franchise shall be used only for the purposes prescribed by this chapter or the franchise and, further, shall not be published or provided orally or in writing to any person, entity, or agency, except as required by law or court order. (Ord. No. 1139, 6-14-95)      !/0B  G H i j   V W E F c d   > ? c d  + t  <Q h^7>* h^6] h^7h^5CJ\aJh^5CJ\ h^CJ h^5\h^O". 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