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(A) During the term of the franchise, a franchised operator shall pay to the city a sum of money equal to 5% of the annual gross revenues accruing from cable services rendered within the city. To the extent consistent with applicable law, payments of compensation made by a franchised cable operator to the city, pursuant to the provisions of this subchapter, shall be considered in addition to, and exclusive of, any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect or subsequently adopted. The franchise fee is for the privilege of using the streets, rights-of-way, easements and public ways and other facilities of the city in the operation of the cable system, and for the city’s supervision during the term of the franchise. If the FCC, Congress or other governmental entity with authority over cable service allows a franchising authority to increase the franchise fee beyond the above percentage, then the city shall have the authority to increase the franchise fee to any new maximum stated rate allowable. It is intended that the franchise fees will promote the health, safety and welfare of the citizens of the city. Accordingly, the franchise fee shall be deposited into the general revenues of the city, unless otherwise specified.
(B) (1) Within 45 days after the end of each reporting quarter, a franchised operator shall file with the city a detailed report clearly showing the gross revenues received by the franchised operator for operations within the city during the proceeding reporting quarter and certified by an authorized representative of the franchised operator attesting to the accuracy of the revenue figures. The report shall be in a form mutually agreed upon by the city and the cable operator.
(2) The report shall include revenue from whatever source, directly or indirectly derived from the operation of the cable system, to provide cable service. Revenue may be reported in the aggregate for the total franchise service area by general service type or source. This report shall specifically identify in detail the sources and amounts of all gross revenues received by a franchisee during the quarter for which payment is made. It is specifically understood that the right of audit and re-computation of any and all amounts paid shall be accorded to the city for five years following payment.
(C) In the event that payment is not made within 60 days after the end of a reporting quarter, then the cable operator may be declared in default of the franchise, and the city may take action against the cable operator as authorized in this subchapter.
(D) The acceptance of any payment shall not be construed as a release of, or an accord or satisfaction of, any claim that the city might have for further or additional sums payable under the terms of this subchapter, or for any other performance or obligation of a franchised operator.
(E) To the extent consistent with applicable law, payments of compensation made by a franchised operator to the city pursuant to this subchapter shall be considered in addition to, and exclusive of, any and all authorized taxes, business license fees or other levies or assessments presently in effect or later adopted.
(F) Franchise fee under this subchapter shall include all items included as a franchise fee under federal law and does not include any item excluded by federal law.
(G) If at any time, the concept of franchise fees are deemed illegal, or unconstitutional, the franchising authority may, if permitted by law, impose an alternative user charge, or excise fee, at a rate not in excess of those fees designated franchise fees and described herein, on the franchised cable system operator.
(Prior Code, § 110.091) (Ord. 13-08, passed 6-3-2013)
(A) To the extent that federal or state law or regulation may now, or as the same may hereafter be amended to, authorize the city to regulate the rates for any particular service tiers, service packages, equipment or any other services provided by the cable operator, the city shall have the expressed right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the city.
(B) The cable operator shall, however, comply with all state and federal laws, regulations and orders of courts regarding any reduction in fees imposed on the cable operator.
(Prior Code, § 110.092) (Ord. 13-08, passed 6-3-2013)
(A) A cable operator’s franchise may not be assigned in whole or in part without the city’s prior written approval. For purposes of this section, ASSIGNMENT shall mean the transfer, sale or any other form of assignment of a cable operator’s franchise, to include any transaction or action which effectively or actually changes ownership from one person or entity to another to include the transfer of 50% or more of the ownership interest of an entity. Any attempted assignment without prior written approval shall constitute a default in the franchise.
(B) A proposed assignment shall be subject to the following.
(1) At least 120 days before a proposed assignment is scheduled to become effective, the franchised operator shall make a written request to the Council for the city’s approval of the proposed assignment.
(2) The city will not unreasonably withhold its consent to an assignment. However, in making its determination, the Council may consider the following criteria:
(a) Qualifications of the proposed assignee;
(b) Financial ability and stability of the proposed assignee;
(c) The experience of the proposed assignee which may include conducting an investigation of the proposed assignee’s record in other communities;
(d) Legal integrity of the proposed assignee or transferee;
(e) Information from the proposed assignee willingness to abide by the terms of the franchise; and
(f) The corporate connection, if any, between the franchised operator and the proposed assignee.
(C) Nothing in this section shall restrict the city from considering other reasonable criteria allowed under law, and in particular, any criteria established under state or federal law, rule or regulation.
(D) Before an assignment or transfer is approved by the city, the proposed assignee shall execute an affidavit that it has read, understood and intends to abide by any existing franchise agreements along with stipulated conditions, covenants, liabilities, obligations and provisions associated with the cable operator’s regulatory, statutory or contractual requirements.
(E) The city may condition such transfer upon such reasonable terms and conditions as it deems appropriate including curing of any outstanding defaults; provided, however, that any such terms and conditions shall be related to the legal, technical and financial qualifications of the prospective controlling party or transferee.
(F) In the event of an assignment, the former franchised operator shall remain liable for any franchise fees incurred for the period while it was franchisee, subject to the application of the state statute of limitations.
(G) (1) Consent shall not be required for an assignment to any entity controlled by, controlling or under common control of the cable operator.
(2) In addition, consent shall not be required for the granting of a security interest in the cable operator’s system including its franchise. However, if the holder of the security interest repossesses, forecloses or takes other action concerning its collateral, it shall dispose of the system within a reasonable period of time and the disposition by the holder of the security interest shall be considered an assignment subject to the provisions of this section.
(Prior Code, § 110.093) (Ord. 13-08, passed 6-3-2013)
To the extent permitted by law, and in order to fulfill an educational and governmental access policy that will facilitate the long range needs of the community, each cable operator shall provide at its own expense one 24-hour per day education/government (EG) channel for the use of the city’s public school system, any state-accredited private or parochial school within the service area and the city and other franchising authorities served by the cable system.
(Prior Code, § 110.094) (Ord. 13-08, passed 6-3-2013)
A cable operator shall furnish, upon request, one standard installation of no more than 250 feet and one outlet for each public K-12 school, any state-accredited private or parochial school within the service area, municipal office building, public library, fire station, police station or courthouse which is passed by the operator’s cable system. Basic cable service and the next additional service tier shall be provided at no charge. An initial connection will be made at no charge with additional connections to be made for the cost of time and materials only.
(Prior Code, § 110.095) (Ord. 13-08, passed 6-3-2013)
(A) Any cable operator providing cable service within the city shall activate and maintain a cable system with a channel capacity of at least 77 channels.
(B) All programming and broadcast services which may be received with stereo signals shall be provided to all subscribers with the stereo signal.
(C) A cable operator shall comply with any rules and regulations of the FCC concerning technical operation, signal quality and consumer electronics equipment compatibility. In addition, the city may at any time amend this subchapter to incorporate any and all standards concerning these matters adopted by the FCC.
(D) A cable operator shall perform any and all essential maintenance and service to properly ensure the operational standards necessary for proper transmission of related programming. If the system, or any part thereof, is inoperative for ten consecutive days or for 30 days out of any consecutive 12-month period, then such event(s) shall be deemed a default subject to the terms of § 115.42 of this code.
(E) If necessary, cable operator will provide state of the art equipment (as defined in § 115.02 of this code), for reduction and elimination of co-channel interference on local television broadcast signals.
(Prior Code, § 110.096) (Ord. 13-08, passed 6-3-2013)
(A) When the franchised operator violates an integral provision of this subchapter, then the franchised operator shall be considered in default of this subchapter.
(1) Examples of a default shall include, but are not limited to: Bankruptcy; insolvency; failure to pay taxes or franchise fees; failure to receive written city approval for an assignment; fraud or deceit; or failure to substantially abide by the integral terms and conditions of the franchise agreement or this subchapter. Events in the nature of force majeure or conditions which cannot be corrected because they are matters beyond the immediate control of the affected cable operator shall not be considered a default. Other examples of a default specifically include material breach, whether by act or omission, of any terms or conditions of this subchapter, material misrepresentation of facts presented in the submission of information required by the franchise agreement or this subchapter, material misrepresentation of fact in the application for or negotiation of the franchise or failure to provide subscribers or users with service as required by the franchise.
(2) In the event that a default occurs, the city shall notify the affected cable operator in writing of the specific violation(s).
(3) The cable operator shall have 45 days from the receipt of the written notice or such longer time as may be necessary in the circumstance to bring itself into compliance so that it is no longer in default of its franchise or this subchapter, as the case may be.
(4) If the cable operator fails to cure its default within the time period provided for above, the matter shall be set for public hearing before the Council to be held no sooner than 45 days after the notice of default was mailed to the cable operator. Written notice of the time and place of the public hearing shall be sent by certified mail to the cable operator and the surety at least ten days prior to the date of the hearing.
(5) At the time of the hearing, the cable operator may present information on the current status of the alleged default in the franchise agreement. If the cable operator fails to attend the hearing where a continuance of the hearing has not been granted by the Council, then the franchised operator may be declared in default of the franchise agreement.
(6) If the default has not been resolved at the time of or as a result of the hearing, the Council may, after the public hearing, direct the cable operator to take corrective action within a specified period of time, or may declare the cable operator in default of the franchise agreement, and revoke or terminate the franchise. The Council’s action shall be mailed to the cable operator within 15 days of the Council’s action.
(7) If the Council directs corrective action to be taken and the cable operator does not rectify the default within the time specified, then the Council may, without further notice, declare the cable operator to be in default and revoke or terminate the franchise.
(8) Upon expiration without rights of renewal or cancellation of the franchise for cause, the city shall have the express right to require the cable operator to remove, at its expense, all portions of the cable television or telecommunications system from all public ways in the city.
(B) Upon cancellation of the franchise for cause, the city shall have the right to purchase the system for a price equal to its fair market value. The fair market value shall be determined in accordance with applicable law and generally accepted cable television appraisal and accounting principles. The original cost of all tangible and intangible property, as well as salvage value, and the book value, the replacement cost, cash flow and other factors may be considered. However, under no circumstances shall any valuation be made for any right or privilege granted pursuant to this franchise. If the city elects to purchase the system, the cable operator shall promptly execute any and all documents necessary to transfer title to the city and shall assign all of the contracts, leases, licenses, permits and any other rights necessary to maintain continuity of service to the public. The cable operator shall cooperate with the city, or such agency or person authorized or directed by the city to operate the system for a temporary period, in maintaining continuity of service. Nothing herein is intended as a waiver of any rights the city may have.
(Prior Code, § 110.097) (Ord. 13-08, passed 6-3-2013)
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