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(A) Franchise territory. The franchise is for the territory or area within the corporate limits of the town and any new areas annexed during the franchise term.
(B) Service. Within the first year after the effective date of the franchise, the franchisee agrees to make available basic CATV service to all residents of the town as set forth in franchisee’s application.
(C) Annexed areas. The franchisee agrees to extend and make cable television service available to every resident in any new annexed area within 12 months of annexation.
(D) Service connection. Request for connection requiring an aerial drop line in excess of 200 feet, the franchisee must extend and make available cable television service to such residents at a connection charge not to exceed the normal drop installation charge plus the actual installation costs incurred by the franchisee for the distance exceeding 200 feet.
(Prior Code, § 114.08) (Ord. passed 11-12-1981)
(B) Limitations on rates. The charges made to subscribers for services of the franchisee in this chapter shall be fair and reasonable. The franchisee shall receive no consideration whatsoever from its subscribers other than in accordance with this section, without approval of the Board of Commissioners.
The franchisee shall not charge rates for basic services and for installations and disconnections in excess of the rate schedule appearing in the franchisee’s application unless approved in accordance with division (C) of this section.
(C) Adjustment to rates.
(1) Initial rates and charges for basic sources and for installation and disconnection shall be fixed in the franchise application. Thereafter, the town or the franchisee may request rate adjustments at any time. After a public hearing affording due notice to the franchisee and other interested persons, the Board of Commissioners may adjust rates. (Public hearing advertisement to be once per week in a newspaper of general circulation in the town for two weeks preceding the hearing.) The criterion to determine whether rates adjustments shall be permitted are the same as those currently set forth in G.S. Ch. 162 for rate adjustment hearings related to rate adjustments for public utilities other than motor carriers and certain water and sewer utilities. The franchisee may appeal the decision of the Board to the courts as permitted by law.
(2) However, the franchisee may increase or decrease its rates at any time, without prior Board approval; provided that, no increase has been made in the preceding six months and provided that the annualized rate of increase within a given 12-month period shall not exceed the average annual rate of
increase over the preceding 12 months in the Consumer Price Index for all Urban Consumers & U.S. City Average Other Utilities and Public Services (1967-100) as Published by the United States Department of Labor, Bureau of Labor Statistics. (In the event that at any time the United States Department of Labor begins publishing a consumer price index on the annual cost adjustments in cable television costs in particular, then that index and its base year shall be used in lieu of the index for other utilities and public services.) The franchisee shall notify the town in writing at least 90 days in advance of the effective date of any proposed rate increase within the limits set forth above. The town may then challenge the increase and schedule meetings, hearings, request additional information, or take whatever action it deems appropriate. If no such action is taken within 60 days of receipt of the original written notice by the town, then the increase will automatically take effect.
(3) Except as set forth in division (C)(2) of this section, rates shall not be changed without Board approval, except that nothing in this provision shall prohibit the reduction or waiving of charges in conjunction with promotional campaign for the purpose of attracting subscribers.
(D) Refunds to subscribers and users.
(1) If any subscriber terminates any monthly service during the first six months of the service because of failure of a franchisee to render the service offered, the franchisee shall refund to such subscriber an amount equal to all charges paid by the subscriber during the period in which no service was received.
(2) If any subscriber terminates for any reason any monthly service prior to the end of a prepaid period, a pro rata portion of any prepaid subscriber service fee shall be refunded to the subscriber by the franchisee using the number of months as the basis.
(E) Advance charges and deposits. A franchisee may require subscribers to pay the installation charge in advance and to pay for each month of basic service in advance at the beginning of each month. No other advance payment or deposit of any kind shall be required by a franchisee for basic subscriber service. Other than for a converter, nothing in this provision shall be construed to prohibit charges for or waiver for charges for initial installation or reconnection.
(F) Installation and reconnection. Except as otherwise provided elsewhere in this chapter, a franchisee may make a charge to subscribers for the installation of service outlets and for the reconnection of service outlets. The rates for such connection or reconnection shall be as authorized in the rate schedule.
(G) Other governmental regulation of rates. If in the future, the state or the United States government or any regulatory agency thereof regulates the rates of the franchisee for the service provided for in the franchise, this section shall be of no effect during such regulation to the extent of any conflict therewith.
(H) Public service installation. The franchisee shall without charge for installation, maintenance or service make single installations of its standard CATV service facilities to those public buildings operated by town and county when the building is located on the franchisee’s system when the system is constructed consistent with the requirements of this chapter. Such installations shall be made at such reasonable locations as shall be requested by the Mayor. Any charge for relocation of such installation shall, however, be charged at the actual cost. Additional installations at the same location may be made at the actual cost. No monthly service charges shall be made for distribution of the franchisee’s basic service, including access channels within the publicly-owned buildings.
(I) Charges for public access. Charges to users of the franchisee’s production facilities for public access programming shall not exceed actual costs incurred. The charges shall be publicly posted and made available at no cost to anyone upon request. Charges shall be clearly and completely stated in the operating rules for public access programming. The charges may be amended only upon approval by the Board of Commissioners. The franchisee shall furnish standard playback facilities and labor at actual cost incurred for the public access channel.
(Prior Code, § 114.09) (Ord. passed 11-12-1981)
As compensation for the authorization granted in this chapter and in consideration for permission to use the easements which the town controls for the construction, operation, and maintenance of a CATV system within the town, the franchisee shall pay to the town quarterly on or before July 1, October 1, January 1 and April 1 for the preceding quarter an amount equal to 3% of the gross revenues. This payment shall be in addition to any other fees or payments made to the town by the franchisee, such as pole rental, business licenses and other fees not based on gross revenues. Payment shall be accompanied by a certified annual report showing the basis for the computation and such other relevant facts as may be required by the town. No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim the town may have for further or additional sums payable under the provisions of this chapter. All amounts paid shall be subject to recomputation by the town within 60 days of the receipt of the franchise annual report. This time limitation shall not apply should the franchisee provide false or erroneous information. In the event that recomputation results in additional revenue to be paid to the town, such amount shall be subject to an interest charge at the highest rate permitted by law. Nothing in this provision shall limit the franchisee’s liability to pay other local taxes and charges.
(Prior Code, § 114.10) (Ord. passed 11-12-1981)
(A) Remedies for breach and contravention of franchise. A breach by the franchisee of the franchise agreement, in addition to constituting a breach of contract, shall constitute a violation of this chapter. The cost of any litigation incurred by the town to enforce this chapter or the franchise granted pursuant hereto, or the franchise agreement or in relation thereto, or in relation to the cancellation or termination of a franchise, shall be reimbursed to the town by the franchisee. The costs shall include filing fees, costs of depositions, discovery and expert witnesses, all other expenses of suit and a reasonable attorney’s fee. Violation of material provisions of this chapter shall subject the franchisee to the following penalties:
(1) Failure of the franchisee to meet performance standards, as determined by the Mayor, to which it has agreed, may result in a rebate of rates or charges to subscribers affected; provided that, the Mayor shall provide ten days written notice of the failure to the franchisee. Any rebate may be charged to the performance bond;
(2) For failure to provide data and reports as requested by the Mayor or the Board of Commissioners and as required by this chapter, the penalty shall be $50 per day for each day not delivered. This penalty may be chargeable to the performance bond;
(3) For failure to complete construction and installation of the cable system, unless the Board of Commissioners approves the delay because of reasons beyond the control of the franchisee, the franchise term may be reduced one year for each three months’ delay. The Mayor shall notify the franchisee during the first month of the three-month period that the system has failed to meet performance standards;
(4) For any other material violation of the ordinance in such amounts per day as the Board may reasonably determine; and
(5) The franchisee may appeal any penalty which it considers unreasonable to the Board of Commissioners and then into the state judicial system as permitted by state law.
(B) Liability and indemnification of the town. The franchisee shall indemnify and hold harmless the town at all times during the term of the franchise granted hereby and specifically agrees that it will pay all damages and penalties which the town may legally be required to pay as a result of granting the franchise. Such damages and penalties shall include, but not be limited to, damages arising out of copyright infringements, and other damages arising out of the installation, operation or maintenance of the CATV system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchisee. In case suit shall be filed against the town either independently or jointly with the franchisee to recover for any claim or damages, the franchisee, upon notice of it by the town, shall defend the town against the action and, in the event of a final judgment being obtained against the town, either independently or jointly with the franchisee solely by reason of the acts of the franchisee, the franchisee will pay the judgment and all costs and hold the town harmless therefrom.
(C) Insurance.
(1) The franchisee shall be required to maintain insurance in such forms and in such companies as shall be approved by the town with the town named as the co-insured, such approval not to be unreasonably withheld, to protect the town and the franchisee from and against any and all claims, injury or damage to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any aspect of the system. The amount of such insurance shall not be less than the following:
(a) General liability insurance:
1. Bodily injury per person, $500,000;
2. Bodily injury per occurrence, $1,000,000; and
3. Property damage per occurrence, $500,000.
(b) Automobile insurance:
1. Bodily injury per person, $100,000;
2. Bodily injury per occurrence, $300,000; and
3. Property damage per occurrence, $300,000.
(2) The town may require the foregoing insurance coverage to be changed from time to time during the term of the franchise.
(3) Workers’ compensation insurance shall also be provided as required by the laws of the state, as amended.
(4) All insurance coverage shall provide a 30-day notice to the Mayor, c/o of the Town Clerk-Treasurer, in the event of material alteration or cancellation of any coverage afforded in the policies prior to the date the material alteration or cancellation shall become effective.
(5) A certificate of coverage for all policies required in this section shall be furnished to and filed with the Mayor at Town Clerk-Treasurer’s office, prior to the commencement of operations or expiration of prior policies, as the case may be.
(D) Non-waiver. Neither the provisions of this section, nor any bonds accepted by the town pursuant hereto, nor any damage recovered by the town hereunder, shall be construed to excuse unfaithful performance by the franchisee or limit the liability of the franchisee under this chapter or the franchise for damages, either to the full amount of the bond, or otherwise.
(E) Faithful performance bond. The franchisee shall, concurrently with its acceptance of this franchise, file with the Mayor at Town Clerk-Treasurer’s office and at all times thereafter maintain in full force and effect for the term of this franchise or any renewal thereof, at the franchisee’s sole expense, a corporate surety bond with a responsible company licensed to do business in the state and approved by the town, in the amount of 5% of the anticipated cost of construction of the proposed CATV system for the town, renewable annually, and conditioned upon the faithful performance of the franchisee, and in accordance with the provisions of this chapter and upon the further condition that in the event the franchisee shall fail to comply with any one or more of the provisions of the franchise, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the town as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment or any property of the franchisee as prescribed hereby, plus a reasonable allowance for attorneys’ fees and costs, up to the full amount of the bond, the condition to be a continuing obligation for the duration of the franchise and any renewal thereof and thereafter until the franchisee has liquidated all of its obligations with the town that may have arisen from the acceptance of this franchise or renewal by the franchisee or from its exercise of any privileges or rights herein granted. The bond shall provide that at least 30 days prior written notice of intention not to renew, cancellation, or material change be given to the town by filing same with the Mayor at Town Clerk-Treasurer’s office. The required performance bond shall be reduced to $2,000 once the franchisee has connected sufficient energized cable to serve the areas required to be served by § 114.08(B) of this chapter. Failure to keep a performance bond in force at all times as herein provided shall constitute an event of default.
(F) Deposit in lieu of bond. In lieu of the performance bond by a surety company as provided in this chapter, the franchisee may file and deposit with the town a performance bond without a corporate surety but secured by a certificate of deposit in some bank or savings and loan association in the state, in the sum of the performance bond required by § 114.11(E) of this chapter conditioned in the same manner as the performance bond of a surety company hereinbefore described. The income from such deposit shall be payable to the franchisee. As an alternative, the franchisee may provide such other security as may be approved by the Board of Commissioners, but absent such approval it shall provide a bond or deposit in lieu thereof as above provided.
(Prior Code, § 114.11) (Ord. passed 11-12-1981)
(A) Emergency override. The cable system shall include an “emergency alert” capability which will permit the Mayor or his or her designee to override, by remote control, the video and/or audio of all channels simultaneously programming in the case of public emergencies. The franchisee shall designate a channel which will be used for emergency broadcasts.
(B) Standby power. The franchisee shall maintain equipment capable of providing standby powering for headend. The equipment shall be constructed so as to notify automatically the cable office when it is in operation and to revert automatically to the standby mode when the AC power returns.
(C) System standards. The franchisee shall install and maintain a cable system which shall be in accordance with the highest and best accepted standards of the industry to the end that subscribers shall
receive the best possible service. In addition, the franchisee shall comply with all requirements of all duly constituted regulatory agencies having jurisdiction over cable television or the operator of the cable system.
(D) State of the art. The franchisee shall upgrade its facilities, equipment and service so that its system is as advanced as the current state of production technology will allow. The franchisee shall install additional channel capacity as required to keep channel capacity in excess of demand therefor by users. At all times, the cable system shall be no less advanced than any other system of comparable size and age excepting only systems which are experimental, pilot or demonstration. The Board of Commissioners shall order the franchisee to comply with this section in case of specific violations, which it may investigate upon complaint or on its own motion.
(E) System carriage.
(1) At all times, the signal carriage and channel utilization shall conform to the regulations of the FCC, state and other regulatory agencies which are not in conflict therewith. The operator shall provide at least one access channel for each of the following activities:
(a) Public access;
(b) Educational access; and
(c) Government access.
(2) As each of these channels is defined under FCC regulations, such channels shall not be required to remain idle if not in use by the public, but rather can be used by the franchisee to produce revenue. Except in cases of emergency, governmental units must give ten days’ notice of intent to use.
(Prior Code, § 114.12) (Ord. passed 11-12-1981)
(A) Construction schedule. The franchisee shall be diligent in commencing construction after the effective date of the franchise.
(B) Changes required by public improvement. A franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place to remove from the road or other public place, any property of the franchisee when required by the town or state by reason of traffic conditions, public safety, road vacation, road construction, change or establishment of road grade, installation of sewers, drains and water pipes, power lines or any other type of structure or improvement by public agencies.
(C) Pole use. The franchisee is obligated to obtain pole space and other facilities from the town, any utility companies, and other lawful users at its own expenses and costs and copies of all pole use agreements in whatever form are to be filed with the Mayor at Town Clerk-Treasurer’s office. In the event of termination for failure to construct the CATV system or expiration of the franchise, the franchisee is to relinquish all rights to pole use immediately and enter into whatever agreements and execute whatever documents may be necessary to accomplish such relinquishment. In the event of termination of the franchise once the system is operating, the franchisee is to relinquish all rights to pole use after a reasonable time has elapsed for the franchisee to attempt to sell the system; however, during such time the franchisee shall diligently be attempting to find a buyer. Such reasonable time, unless otherwise agreed to by the town, shall be nine months. This provision may be enforced by appropriate equitable remedy from a court of competent jurisdiction as set forth in G.S. § 153A-123. Such equitable relief includes, but is not limited to, injunctions and orders of abatement and upon refusal to comply, the franchisee may be cited for contempt.
(D) Use of existing poles or conduits. Nothing in this chapter, or any franchise granted hereunder, shall authorize the franchisee to erect and maintain in the town new poles where existing poles are servicing the area. The franchisee shall obtain permission from the town before erecting any new poles or underground conduit where none exists at the time the franchisee seeks to install his or her network.
(E) Facilities not to be hazardous or interfere. All wires, conduits, cable and other property and facilities of the franchisee shall be so located, constructed, installed and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon the roads and public places of the town. The franchisee shall keep and maintain all of its property in good condition, order and repair. The franchisee shall keep accurate maps and records of all its facilities and furnish copies of such maps and records as requested by the town in the section dealing with reports. A franchisee shall not place poles or other equipment where they will interfere with the rights or reasonable convenience of adjoining property owners, or with any gas, electric or telephone fixtures, or with any water hydrants or mains.
(F) Methods of installation. All wires, cables, amplifiers and other property shall be constructed and installed in an orderly and workmanlike manner consistent with all applicable requirements of the National Electric Code, state and local electric codes, and all pole attachment agreements. All cables and wires shall be installed parallel with existing telephone and electric wires whenever possible. Multiple cable configurations shall be arranged in parallel and bundled, with due respect for engineering and safety considerations. All installations shall be underground in these areas of the town where electric service is underground at the time of installation. In areas where electric utility facilities are aboveground at the time of installation, the franchisee may install its service aboveground with the understanding that at such time as those facilities are required to be placed underground by the town, the franchisee shall likewise place its services underground without additional cost to the subscribers or the town. It shall be the policy of the town that underground installation, even when not required, is preferable to the placement of additional poles.
(G) Subscriber’s underground installation option. Should any subscriber wish to have underground service in any area normally provided service via overhead (aerial) construction, the subscriber requesting such underground service shall pay all costs attendant to underground construction plus 10% less the normal costs of such equivalent overhead installation, if such overhead service does not exist to the subscribers’ residence.
(H) Prohibition of signal distribution by others. No equipment, cable or other apparatus shall be connected between the franchisee’s CATV system and the subscriber’s receiver except as furnished and installed by the franchisee.
(I) Requests for removal or change. The franchisee shall, on the request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of the building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than five days’ advance notice of any move contemplated to arrange for temporary wire changes.
(J) Construction standards; clearance aboveground. The franchisee’s distribution system in the public streets shall comply with all applicable laws, regulations and ordinances, and all its wires and cables suspended from poles in the streets shall comply with the minimum clearances aboveground required for telephone lines, cables, wires and conduits.
(K) Maintenance and alteration of the system after construction. The Board of Commissioners may require any part or all of the system to be improved or upgraded (including, without limitation, the increasing of channel capacity, the furnishing of improved converters, and the institution of two-way transmissions), if a reasonable need is found therefor after a public hearing has been called, for that purpose, and may order such improvement or upgrading of the system, to be affected by the franchisee within a reasonable time thereafter; provided that, no change shall compromise the franchisee’s ability to perform satisfactorily its obligations or rights under this chapter or the franchise agreement.
(Prior Code, § 114.13) (Ord. passed 11-12-1981) Penalty, see § 10.99
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