Loading...
(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)
In addition to any requirement contained within this subchapter, all cable operators shall be expected to comply with all applicable provisions of the Cable Communications Policy Act of 1984, being 47 U.S.C. §§ 521 et seq., the Cable Television Consumer Protection and Competition Act of 1992, being Pub. L. 102-385, the Telecommunications Act of 1996, being Pub. L. 104-104 and all later legislation directed at controlling or regulating cable operators, and any rules and regulations issued pursuant to this legislation. In addition, any franchise issued pursuant to this subchapter shall be subject to amendment to incorporate any federal legislation, rules or regulations which become effective after the date of the franchise. Franchises may be amended only by written agreement of the city and the cable operator.
(Prior Code, § 110.098) (Ord. 13-08, passed 6-3-2013)
ADMINISTRATION AND ENFORCEMENT
(A) Delegation of powers and authority. Unless prohibited by federal or state law, the Council may delegate its delegable powers and authorities, with respect to a cable operator, to one or more duly authorized representatives of the city, including the Mayor, the City Administrator or a Cable Advisory Board. Provided, the Council may never delegate its franchising or revocation power to another person. A cable operator may appeal to the Council any decision made pursuant to such a delegation.
(B) Retained rights and authorities. Subject to federal or state law, the city retains the authority for:
(1) The regulation and control of any cable system within the geographical limits of the city, and within the limits prescribed by applicable law;
(2) The award and grant of a cable franchise subsequent to review of an application or proposal by the Council;
(3) The amendment of a franchise by mutual agreement of the Council and the holder of the franchise;
(4) The regulation of rates and charges associated with the providing of cable service by a cable operator; and
(5) The enforcement of all laws and regulations relating to cable customer service practices and consumer protection.
(C) No waiver of immunities. Notwithstanding the above, nothing in this subchapter shall be read to constitute or to require a waiver of any rights of the city under the doctrine of sovereign immunity, provided, such exercise shall not impair the rights and privileges of any cable operator under a franchise then in force.
(Prior Code, § 110.062) (Ord. 13-08, passed 6-3-2013)
(A) Compliance. Unless exempted entirely or in part from this subchapter or any of its provisions, this subchapter shall be applicable to all cable operators. A cable operator shall be expected to comply with this subchapter no later than six months after it becomes effective unless a different compliance date is given to the cable operator.
(B) Standards. The cable operator shall maintain service in accordance with good and workmanlike standards, so as to provide subscribers with the highest possible level of quality and reliability.
(C) Noncompliance not excused for failure to enforce. A cable operator shall not be excused from complying with any of the requirements of this subchapter by any failure of the city on any one or more occasions to seek, or insist upon compliance with this subchapter.
(D) Compliance with law. Any cable operator, its assignee or transferee shall be subject to, and expected to comply with:
(1) All ordinances in effect within the city, including this subchapter, to the extent that the cable operator has not received exemption or relief;
(2) All federal and state laws, and all rules and regulations issued by all applicable regulatory agencies; and
(3) All lawful exercise of the city’s police power not inconsistent with the terms of its franchise.
(E) Inconsistencies with federal or state law. If any provision or section of this subchapter is inconsistent with any provision or section of a federal or state rule, regulation or law, then the federal or state rule, regulation or law shall control.
(Prior Code, § 110.063) (Ord. 13-08, passed 6-3-2013)
(A) The city and each cable operator shall provide the other party with the name and address of the contact person designated to receive notices, filings, reports, records, documents and all other correspondence. All notices shall be delivered to each party’s contact person by certified mail, return receipt requested, personal service with signed receipt of delivery, or overnight express with receipt verification.
(B) All other filings, reports, records, documents and other correspondence may be delivered by any permissible means including, but not limited to: Facsimile transmission (faxing); personal service; overnight mail or package delivery; or, upon agreement of the parties, email. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of receipt (unless otherwise designated by state law). The designation of the contact person for notice purposes may be contained within any franchise agreement. The cable operator shall pay the costs associated with the publication of any notice required herein or otherwise mandated by law.
(Prior Code, § 110.064) (Ord. 13-08, passed 6-3-2013)
(A) General. To the extent permitted by law, each cable operator shall defend, indemnify and hold harmless the city, its officials, authorized agents and employees from any and all penalty, damage or loss arising out of claims, suits, demands, causes of action or award of damages which might be claimed now or in the future, which arise out of, or are caused by, the construction, erection, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of the operator’s cable system within the city except that this indemnity shall not apply to claims to the extent they result from the city’s negligence or wrongdoing. Reasonable attorney fees, consultant fees, expert witness fees and other expenses of litigation are included as those costs which may be recovered by the city.
(1) If a cable operator obtains counsel for the city, its officials, agents and employees, then the cable operator shall consult with the city on the selection of counsel.
(2) The city, its officials, agents and employees shall have the right to retain counsel of their own at their own expense.
(3) With respect to a cable operator’s own defense of any of the actions noted in this section, it is understood that the cable operator reserves the right to retain its own counsel at its own expense without the city’s approval.
(B) Nonliability of city.
(1) The city shall not and does not by reason of this subchapter or the granting of a certificate of franchise assume any liability of the cable operator whatsoever for injury or loss to persons or property.
(2) (a) The cable operator shall pay and by its acceptance of the certificate of franchise specifically agrees it will pay all damages, losses and penalties which the city may legally be required to pay as a result of granting a franchise certificate to the cable operator.
(b) Those damages, losses or penalties shall include, but shall not be limited to damages arising out of copyright infringements and all other damages arising out of the installation, operation or maintenance of the cable system authorized herein, and all other broadcasting or other transmission hereover or therethrough, except for public, educational and governmental access programming, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise.
(3) In any court proceeding involving any claim against the city or any official, member, employee or agent of the city, arising from the regulation of cable service or from a decision of approval or disapproval with respect to a grant, renewal, transfer or amendment of a franchise, any relief, to the extent such relief is required by any other provision of federal, state or local law, shall be limited to injunctive relief and declaratory relief.
(4) The cable operator acknowledges by the acceptance of a franchise agreement that it has carefully read the provisions, terms and conditions hereof and is willing to, and does accept, all of the risk attendant to said provisions, terms and conditions hereof.
(Prior Code, § 110.065) (Ord. 13-08, passed 6-3-2013)
Loading...