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(1) System construction schedule. Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required.
(2) Use of franchisee facilities. The city shall have the right to install and maintain free of charge upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the franchisee. Provided that, if the city uses a franchisee's conduit or poles to install a cable system that competes with that franchisee in the provision of cable service to residential subscribers, the franchise agreement may provide that the franchisee may charge the city a fair market rate pursuant to that franchise agreement. Franchisee shall notify the city when it enters into an agreement for use of its poles and conduits. Copies of agreements for use of franchisee's conduits or poles in the public rights- of-way or on other public property shall be available for review upon the city's request. A franchise agreement may include a provision under which the city shall indemnify, defend and hold a franchisee harmless for all claims arising out of the city's use of that franchisee's poles and conduits where the franchisee and the city do not have a joint pole or conduit use agreement.
(3) Provision of service/quality of service. In addition to satisfying such requirements as may be established in a franchise, every cable system shall be subject to the following conditions, except as prohibited by federal law:
(A) It is the policy of the city to ensure that every franchisee provide service in the franchise area upon request to any person or any government building. Each franchisee shall extend service upon request within its franchise area, provided that a franchise agreement may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in Section 5-25(3)(B).
(B) Except as a franchise agreement otherwise provides, a franchisee must extend service to any person or to any government building in the franchise area which requests it within seven (7) business days of the request, where service can be provided by activating or installing a drop; within ninety (90) calendar days of the request where an extension of one-half mile or less is required; or within six (6) months where an extension of one-half mile or more is required. Provided that, in cases where a franchise agreement permits a franchisee to require a potential subscriber to bear a share of extension or installation costs, and franchisee requires the potential subscriber to bear such costs, the time for extension shall be measured from the date the subscriber agrees to bear such costs or, if a franchisee requires prepayment of all or a portion of the estimated costs, from the date the prepayment is made. A franchisee that requires a potential subscriber to bear a portion of installation or extension costs must prepare a written estimate of extension costs within seven (7) business days of a request for an installation or extension that would be subject to cost-sharing.
(C) Any cable system within the city shall meet or exceed the technical standards set forth in 47 CFR 76.601 and any other applicable technical standards.
(D) A franchisee shall perform all tests necessary to demonstrate compliance with the requirements of the franchise agreement and other technical and performance standards established by applicable law. Unless a franchise agreement or applicable law provides otherwise, all tests shall be conducted in accordance with federal rules and in accordance with the most recent edition of National Cable Television Association's Recommended Practices for Measurements on Cable Television Systems, or such other manual as may be directed under FCC regulations. A written report of any test results shall be filed with the city within seven (7) calendar days of a request by the city. If a location fails to meet technical or performance specifications, the franchisee, without requirement of additional notice or request from city, shall promptly take corrective action, and retest the locations.
(E) Every cable or open video system and every cable or open video system operator shall be required to interconnect with every other cable or open video system and cable or open video system operator within the city on fair and reasonable terms for purposes of providing PEG and I-Net services.
(4) System maintenance. Scheduled maintenance shall be performed so as to minimize the effect of any necessary interruptions of cable service.
(5) Continuity of service. Each franchise agreement shall, during the term of the franchise, ensure that subscribers are able to receive continuous service and that, in the event the franchise is revoked or terminated, the franchisee may be obligated to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity.
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11
(1) Communication with regulatory agencies. If requested by the city in writing, a franchisee shall file with the city all reports required by the FCC including, without limitation, any proof of performance tests and results, Equal Employment Opportunity (EEO) reports, and all petitions, applications, and communications of all types directly related to the cable system, or a group of cable systems of which the franchisee's cable system is a part, submitted or received by the franchisee, an affiliate, or any other person on the behalf of the franchisee, either to or from the FCC, the Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's cable system. Provided that, nothing herein requires the franchisee to produce regulatory or court filings that are treated by the agency or court as confidential, such as Hart-Scott-Rodino Act filings. Nothing in this section affects any rights the city may have to obtain books and records under Article II.
(2) Reports.
(A) If requested by the city in writing within forty-five (45) calendar days after the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information, within thirty (30) calendar days of such written request:
1. The number of service calls (calls requiring a truck roll); and
2. The number and type of outages known by the franchisee for the prior quarter, identifying separately the following:
a. Each planned outage, the time it occurred, its duration, and the estimated area affected;
b. Each known unplanned outage, the time it occurred, its estimated duration and the estimated area affected, and if known, the cause;
c. The total estimated hours of known outages. An outage is a loss of sound and video on all channels.
(B) Upon written request of the city, no later than ninety (90) calendar days after the end of its fiscal year, a franchisee shall submit a written report, within forty-five (45) calendar days of such request, that shall contain such information as may be required from time to time by the city, and at least the following, unless the city waives the requirement:
1. A summary of the previous year's activities in the development of the cable system, including descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of cable service;
2. A summary of service calls for which records are required under Section 5-26(3)(A), identifying both the number and nature of the service calls received and an explanation of their dispositions, if any;
3. A revenue report from the previous fiscal year for the cable system, audited by a certified public accountant;
4. An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent (10%) or more;
5. A list of officers and members of the board of directors of the franchisee and any affiliates directly involved in the operation or the maintenance of the cable system;
6. An organizational chart showing all corporations or partnerships with more than a ten (10) percent interest ownership in the franchisee, and the nature of that ownership interest (limited partner, general partner, preferred shareholder, etc.); and showing the same information for each corporation or partnership that holds such an interest in the corporations or partnerships so identified and so on until the ultimate corporate and partnership interests are identified;
7. An annual report of each entity identified in Section 5-26(2)(B)6. which issues an annual report;
8. A complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year categorized as aerial and underground, provide revisions to the cable system maps filed with the city, and report the results of appropriate electronic measurements to show conformity with FCC technical standards.
9. A report showing, for each cable customer service standard in force, the franchisee’s performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance.
10. Notwithstanding the above, once the information required by Sections 5-26(2)(B)4.-6. has been filed once, it need only be refiled if it changes.
(3) Records Required. A franchisee shall at all times maintain:
(A) Records of all service calls received with information sufficient to allow the franchisee to prepare the reports required in this section;
(B) Records of outages known to the franchisee, with information sufficient to allow a franchisee to prepare the reports required in this section;
(C) Records of service calls for repair and maintenance indicating the date and time, if available, service was requested, and date and time, if available, service was scheduled (if it was scheduled), and the date and time, if available, service was provided, and (if different) the date and time the problem was solved, if available; and
(D) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, if available, and the date and time, if available service was provided.
(Ord. No. 00-31, § 1, 6-20-00)
(1) Scope and applicability. The city reserves all rights to implement and impose regulation of a franchisee's rates and charges to the maximum extent permitted by law, and may do so by amendment to this chapter, by amendment to a franchise agreement, or in any other lawful manner.
(2) Rate regulation procedures. Rate regulation shall be performed in accordance with the rules and regulations of the FCC. The city manager, or his designee, may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC regulations. The city commission shall be responsible for issuing final rate orders that establish rates or order refunds. No rate may be put into effect without the prior review and approval of the city, except as federal law may otherwise require.
(3) Rate discrimination prohibited. Except to the extent the city may not enforce such a requirement, a franchisee is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a non-discriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner. A franchisee shall comply at all times with all applicable federal, state, and city laws, and all executive and administrative orders relating to non- discrimination.
(4) Cable consumer protection standards. Each franchisee must satisfy cable consumer protection standards established by the city from time to time by ordinance or by resolution. In addition, each franchisee shall at all times satisfy any additional or stricter requirements established by applicable law including, without limitation, FCC customer service standards and consumer protection laws.
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11
A franchisee shall pay to the city a franchise fee in an amount equal to five percent (5%) of gross revenues.
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11
(1) City approval required. No transfer shall occur without prior written notice to and approval of the city commission. Transfer without the prior written approval of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.
(2) Application.
(A) The franchisee shall promptly notify the city of any proposed transfer. If any transfer should take place without prior notice to the city, the franchisee will promptly notify the city that such a transfer has occurred.
(B) At least one hundred twenty (120) calendar days prior to the contemplated effective date of a transfer, the franchisee shall submit to the city an application for approval of the transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application, provided that a franchisee is not required to duplicate information that it submits to the city to comply with its obligations under federal or state law:
1. All information and forms required under federal law or the equivalent of such forms if no longer required by federal law;
2. All information required in Sections 5-24(2)(A) and 5-24(2)(E)-J. of this chapter;
3. Any contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein to the extent that such documentation is required by the FCC;
4. Any shareholder reports or filings with the Securities and Exchange Commission (SEC) that discuss the transaction;
5. Other information necessary to provide a complete and accurate understanding of the financial position of the cable system before and after the proposed transfer;
6. Complete information regarding any potential impact of the transfer on subscriber rates and service;
7. A brief summary of the proposed transferee's plans for at least the next five (5) years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.
(C) For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned as provided under Section 5-29(3). The franchisee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied.
(3) Determination by city. In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a franchise, the city shall consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the city's interest under this chapter, the franchise agreement, or other applicable law.
(4) Transferee's Agreement. Subject to any transitional provisions that may apply, no application for a transfer of a franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee under this chapter and the franchise agreement for all purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part.
(5) Approval does not constitute waiver. Approval by the city of a transfer of a franchise does not constitute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer.
(6) Exception for intra-company transfers. Notwithstanding the foregoing, a franchise agreement may provide that transfers to affiliates of a franchisee shall be excepted from the requirements of Section 5-29(1) and (2) where the affiliate is wholly-owned and managed by an entity that will guarantee the performance under a franchise agreement; and, subject to any transitional provisions that may apply the transferee affiliate:
(A) Notifies the city of the transfer at least sixty (60) calendar days before it occurs and, at that time provides the agreements and warranties required by this section, describes the nature of the transfer, and submits complete information describing who will have direct and indirect ownership and control of the cable system after the transfer;
(B) Warrants that it has read, accepts and agrees to be bound by each and every term of the franchise and related amendment, regulations, ordinances and resolutions then in effect;
(C) Agrees to assume all responsibility for all liabilities, acts and omissions known and unknown of its predecessor franchisees for all purposes, including renewal;
(D) Agrees that the transfer shall not permit it take any position or exercise any right which could not have been exercised by its predecessor franchisees;
(E) Warrants that the transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the franchisee (the warranty to be based on comparing the burdens upon and resources that will be available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the franchisee to perform;
(F) Warrants that the transfer will not in any way adversely affect the city or subscribers (including by increasing rates);
(G) Notifies the city that the transfer is complete within five (5) business days of the date the transfer is complete; and
(H) Agrees that the transfer in no way affects any evaluation of its legal, financial or technical qualifications that may occur under the franchise or applicable law after the transfer, and does not directly or indirectly authorize any additional transfers.
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11
(1) Subscriber right to attach. To the extent consistent with federal law, subscribers shall have the right to attach VCRs, receivers, and other terminal equipment to a franchisee's cable system to receive services for which they paid. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment to receive services for which they paid.
(2) Removal of existing antennae. A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, provided that such antenna is connected with an appropriate device and complies with applicable law.
(Ord. No. 00-31, § 1, 6-20-00)