(A) Authority.
(1) The city shall be vested with the power and right to reasonably regulate the exercise of the privileges permitted by this franchise in the public interest or to delegate that power and right or any part thereof, to the extent permitted under federal, state and local law, to any agent in its sole discretion.
(2) Nothing in this franchise shall limit nor expand the city's right of eminent domain under state law.
(B) Rates and charges. All of grantee's rates and charges related to or regarding cable services shall be subject to regulation by the city to the full extent authorized by applicable federal, state and local laws. Grantee shall comply with the notice requirements found at 47 C.F.R. §§76.1601–76.1630; Negative Option Billing protections found at 47 C.F.R. §76.981; the customer service standards found at 47 C.F.R. § 76.309; the guides against bait advertising found at 16 C.F.R. Part 238, as applicable; the Customer Service Standards, Exhibit B of this Franchise Ordinance 2019-009 and any other applicable law. Grantee may not engage in any trade practice prohibited by state or federal law.
(C) Rate discrimination.
(1) All of grantee's rates and charges shall be published (in the form of a publicly available rate card) and be non-discriminatory as to all persons and organizations of similar classes, under similar circumstances and conditions. Grantee shall apply its rates in accordance with applicable law, with identical rates and charges for all subscribers receiving identical cable services, without regard to race, color, ethnic or national origin, religion, age, sex, sexual orientation, marital, military or economic status, or physical or mental disability or, where consistent with any requirements of federal law, geographic location within the city. Grantee shall offer the same cable services to all residential subscribers at identical rates to the extent required by applicable law and to multiple dwelling unit subscribers to the extent authorized by FCC rules or applicable federal law. Grantee shall permit subscribers to make any lawful in-residence connections the subscriber chooses without additional charge or penalizing the subscriber therefor. However, if any in-home connection requires service from grantee due to signal quality, signal leakage or other factors caused by improper installation of such in-home wiring or faulty materials of such in-home wiring, the subscriber may be charged reasonable service charges by grantee.
(2) Nothing herein shall be construed to prohibit lawful pricing programs which do not discriminate based on the categories identified herein. Such pricing programs may include:
(a) The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns; or
(b) The offering of reasonable discounts to senior citizens or economically disadvantaged citizens; or,
(c) The offering of rate discounts for cable service; or,
(d) The establishing of different and nondiscriminatory rates and charges and classes of service for commercial subscribers, as allowable by federal law and regulations.
(D) Filing of rates and charges.
(1) Throughout the term of this franchise, grantee shall maintain on file with the city a complete schedule of applicable rates and charges for cable services provided under this franchise. Nothing in this subsection shall be construed to require grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns or to prohibit the city from auditing, reviewing or confirming that promotional campaigns are consistent with the terms of this franchise.
(2) Upon request of the city, grantee shall provide a complete schedule of current rates and charges for any and all leased access channels or portions of such channels provided by grantee. The schedule shall include a description of the price, terms, and conditions established by grantee for leased access channels.
(E) Cross subsidization. Grantee shall comply with all applicable laws regarding rates for cable services and all applicable laws covering issues of cross subsidization.
(F) Reserved authority. Both grantee and the city reserve all rights they may have under the Cable Act and any other relevant provisions of federal, state, or local law.
(G) Franchise amendment procedure. Either party may at any time seek an amendment of this franchise, including amendments which are necessary to address any significant changes, e.g., changes in the community's cable-related needs and interests or changes in technology affecting cable services, by so notifying the other party in writing. Within 30 days of receipt of notice, the city and grantee shall meet to discuss the proposed amendment(s). If the parties reach a mutual agreement upon the suggested amendment(s), such amendment(s) shall be submitted to the City Council for its approval. If so approved by the City Council and grantee, then such amendment(s) shall be deemed part of this franchise. If mutual agreement is not reached, there shall be no amendment.
(H) Time limits strictly construed. Subject to § 13-5-3-4(K) and (L), whenever this franchise sets forth a time for any act to be performed by grantee, such time shall be deemed to be of the essence, and any failure of grantee to perform within the allotted time may be considered a breach of this franchise and sufficient grounds for the city to invoke any relevant remedy in accordance with § 13-5-3-13(A) of this franchise.
(I) Performance evaluations.
(1) The city may hold performance evaluation sessions upon 90 days' written notice, provided that such evaluation sessions shall be held no more frequently than once every two years. All such evaluation sessions shall be conducted by the city.
(2) Special evaluation sessions may be held at any time by the city during the term of this franchise, upon 90 days' written notice to grantee.
(3) All regular evaluation sessions shall be open to the public and announced at least two weeks in advance in any manner within the discretion of the city. Grantee shall also include with or on the subscriber billing statements for the billing period immediately preceding the commencement of the session written notification of the date, time, and place of the regular performance evaluation session, and any special evaluation session as required by the city, provided grantee receives appropriate advance notice.
(4) Topics which may be discussed at any evaluation session may include but are not limited to cable service rate structures; franchise fee payments; liquidated damages; free or discounted cable services; application of new technologies; cable system performance; cable services provided; programming offered; subscriber complaints; privacy; amendments to this franchise; judicial and FCC rulings; line extension policies; and the city or grantee's rules; provided that nothing in this subsection shall be construed as requiring the renegotiation of this franchise.
(5) During evaluations under this subsection, grantee shall fully cooperate with the city and shall provide such information and documents as the city may reasonably require to perform the evaluation.
(J) Late fees.
(1) For purposes of this subsection, any assessment, charge, cost, fee or sum, however characterized, that grantee imposes upon a subscriber solely for late payment of a bill is a late fee and shall be applied in accordance with applicable law.
(2) Nothing in this subsection shall be deemed to create, limit or otherwise affect the ability of grantee to impose other assessments, charges, fees or sums other than those permitted by this subsection, for grantee's other services or activities it performs in compliance with applicable law, including FCC law, rule or regulation.
(3) Grantee's late fee and disconnection policies and practices shall be nondiscriminatory, and such policies and practices and any fees imposed pursuant to this subsection shall apply equally in all parts of the city without regard to the neighborhood or income level of the subscriber.
(K) Force majeure.
(1) In the event grantee is prevented or delayed in the performance of any of its obligations under this franchise by reason beyond the control of grantee, grantee shall have a reasonable time, under the circumstances, to perform the affected obligation under this franchise or to procure a substitute for such obligation that is satisfactory to the city. Those conditions which are not within the control of grantee include but are not limited to natural disasters, civil disturbances, work stoppages or labor disputes, power outages, telephone network outages, and severe or unusual weather conditions which have a direct and substantial impact on grantee's ability to provide cable services in the city and which was not caused and could not have been avoided by grantee, which used its best efforts in its operations to avoid such results.
(2) If grantee believes that a reason beyond its control has prevented or delayed its compliance with the terms of this franchise, grantee shall provide documentation as reasonably required by the city to substantiate grantee's claim. If grantee has not yet cured the deficiency, grantee shall also provide the city with its proposed plan for remediation, including the timing for such cure.
(L) Minor violations. The parties hereby agree that it is not the city's intention to subject grantee to penalties, fines, forfeitures or revocation of the franchise for violations of the franchise where the violation was a good faith error that resulted in no or minimal negative impact on the subscribers within the franchise area, or where strict performance would result in practical difficulties and hardship to grantee which outweighs the benefit to be derived by the city and/or subscribers. The city and grantee agree to abide by standard commercial practices and principles, including the application of the good faith doctrine to all aspects of this Franchise Ordinance.