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(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)
A cable operator shall secure and maintain, for as long as it provides cable service to subscribers, public liability insurance, property damage insurance, products, services, completed operations and independent contractors’ insurance with umbrella coverage as follows.
(A) The coverage shall be in at least the following amounts:
(1) Public liability: $2,000,000 per person/per occurrence;
(2) Property damage: $2,000,000 per any one claim; or
(3) Umbrella liability: $2,000,000 with up to a $50,000 deductible and/or base insurance.
(B) A cable operator’s public and personal liability and property damage insurance policy shall specifically include the city and its officials, agents, employees and representatives as additional insureds.
(C) The public and personal liability and property damage insurance policy shall be issued by an insurance company licensed to do business in the state for the type of policy being issued. The certificate shall include the city as additionally insured.
(D) The public and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the city with at least 30 days’ written notice in advance of the cancellation of the insurance.
(E) Renewal or replacement policies or certificates of insurance shall be delivered to the city prior to the expiration of then existing insurance.
(F) Before a cable operator initially provides cable service to subscribers, the cable operation shall deliver the policies or certificates of insurance to the city.
(G) If the state permits a cable operator to self-insure, then the cable operator may exercise its right and self-insure as long as the minimal insurance amounts outlined in this section are met and maintained.
(Prior Code, § 110.066) (Ord. 13-08, passed 6-3-2013)
A cable operator shall comply with the following bonding requirements.
(A) (1) A construction/completion bond shall be furnished prior to the time that a cable operator commences a system-wide construction, upgrade or rebuild project that has a capital construction cost or outlay exceeding $250,000 in value where the construction takes place in one or more easements or in the public way. Such bond shall guarantee that the surety will make whole (to the extent of the bond) any monetary losses incurred by the city due to such construction.
(2) The amount of the bond shall equal at least 90% of the projected capital construction cost or outlay but shall not exceed $250,000. The construction/completion bond shall remain in force at all times until one year after completion of construction as determined by the Chief Building and Code Official, unless relief is granted or a reduction schedule is detailed in an agreement between the city and the cable operator.
(B) If the city draws on a bond as a result of a cable operator’s failure to indemnify the city from any monetary losses resulting from the construction, the cable operator shall replenish the bond within 30 days to the level required in this section.
(Prior Code, § 110.067) (Ord. 13-08, passed 6-3-2013)
Upon written request of the city, a cable operator shall furnish, at no cost to the city, copies of any or all filings with the FCC and the United States Copyright Office which concern the operations system in the city within 30 days of the request.
(Prior Code, § 110.068) (Ord. 13-08, passed 6-3-2013)
A cable operator shall keep complete and accurate books of accounts and records concerning the business and operations of the cable system.
(A) The city shall, upon seven days’ written notice, have access at all reasonable hours to all plans, contracts and engineering, accounting, financial, statistical, summary customer service records and other documents, as are necessary to the enforcement of city’s rights or cable operator’s obligations under this subchapter or applicable law.
(B) The city shall have the right, on seven days’ written notice, to review at the cable operator’s local office all records pertaining to a cable operator’s cable operations with respect to the city which are necessary to the enforcement of this subchapter or an applicable franchise. Any review, unless mutually agreed upon or judicially ordered, shall occur during the cable operator’s regular office hours. The city acknowledges the sensitivity of these records and will treat this information as confidential and proprietary to the fullest extent authorized by law.
(C) Not more frequently than every third year, subject to the provisions of division (E) below, the city shall have the right to hire an independent certified public accountant, or other business or financial expert, to review the books and records of a cable operator pertaining to revenue information in order to determine if franchise fees were properly paid.
(D) A deliberate false entry in the books and/or records of a cable operator of a material and substantial fact relevant to a cable operator’s compliance with the terms of this subchapter or its franchise may constitute a material violation of this subchapter.
(E) If, after a review or audit of a cable operator’s records, it is discovered that the cable operator has underpaid franchise fees to the city by an amount that exceeds 5% of the total amount paid for any reporting year, then the city may require the cable operator to reimburse the city for the actual underpayment, and in addition thereto the city may require additional audits the following two years.
(Prior Code, § 110.069) (Ord. 13-08, passed 6-3-2013)
(A) FCC standards. Cable operators shall comply with the customer service standards established by the FCC.
(B) Notifications to subscribers. A cable operator shall provide information and notices to subscribers as required by FCC regulations.
(C) Billing practices. A cable operator shall comply with the billing practice regulations of the FCC.
(D) Billing credit or refunds for service outages, interruptions or unsolicited service. A cable operator shall provide a subscriber upon request with credit or a rebate for a service outage or interruption exceeding eight hours. The credit for purposes of determining the amount of the credit or rebate shall be deemed to be equivalent to, or the same as a 24-hour service outage. No credit or rebates shall be required where the outage was due to matters beyond the immediate control of the cable operator.
(E) Special service requirements. A cable operator shall comply with all applicable federal and state laws and regulations concerning special service requirements for disabled, sight or hearing impaired or ambulatory impaired customers.
(F) Preferential or discriminatory practices prohibited.
(1) A cable operator shall not, as to rules, regulations, rates, changes, provision of service or use of a provider’s facilities and equipment, make or allow or grant illegal preference or advantage to any person, nor subject any person to illegal prejudice or disadvantage on the basis of age, race, creed, color, sex, national origin, handicap, religious affiliation or location of residence. Cable operators shall not deny cable service, or the extension of cable service, to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.
(1) The provisions of this section shall not, however, prohibit a cable operator from:
(a) Offering a promotional or incentive discount rate or charge;
(b) Denying service based on location of residence, if that residence is outside the parameters for line extension as detailed in a franchise agreement, if applicable; or
(c) Implementing a carefully designated no-frills service tier for lower income, and/or fixed income individuals.
(G) Use and return of equipment. A customer shall maintain any equipment rented or leased from a cable operator in good working order and operate the equipment only in the manner specified by the cable operator or the manufacturer of the equipment.
(1) If needed for proper operation, or requested by a customer, a cable operator shall deliver to a customer written instructions detailing the proper use of rented, loaned or purchased equipment. A cable operator may comply with this section by delivering the manufacturer’s instructions to a customer.
(2) A customer shall totally and fully reimburse a cable operator for any damage to a cable operator’s equipment that is due to the customer’s failure to properly maintain and operate the equipment.
(3) A customer shall be relieved from any responsibility for reimbursing a cable operator for equipment which malfunctions or does not operate due to a hidden or latent defect in the equipment or which fails to operate or improperly operates due to natural occurrences conditioned by the normal wear and tear of the equipment.
(4) No charge shall be made to the subscriber for repair services except in the event that such repair service is necessitated by the subscriber’s willful misuse of the equipment or the subscriber’s continued negligent care of such equipment.
(H) Security deposits. A cable operator is not required to seek a security deposit from a customer for use or rental of the cable operator’s equipment. However, if a security deposit is charged:
(1) A cable operator shall comply with any and all applicable state statutes, rules or regulations concerning security deposits. If the state has no statutes, rules or regulations concerning the security deposit for a particular piece of equipment, then the cable operator shall be prohibited from charging any security deposit for equipment which exceeds the replacement cost to the cable operator; and
(2) A cable operator shall return a security deposit if the equipment is returned in as good condition as when provided to the customer, normal wear and tear accepted.
(I) Disconnection for non-payment. A subscriber shall not be subject to disconnection for non-payment unless at the time of posting the following months bill, payment has not been received by a cable operator.
(1) Before disconnection of a subscriber’s cable service for nonpayment takes place, the subscriber must in fact be subject to disconnection for nonpayment, and at least five days shall have elapsed after a written notice of impending disconnection has been served upon the subscriber, or at least seven days have elapsed after mailing written notice of impending disconnection to the subscriber.
(2) The written notice of disconnection must state the amount that is owed by the subscriber to a cable operator, the minimum amount required to be paid to avoid disconnection and the date and place where the payment may be made.
(3) Receipt of a bad check from a subscriber in response to a written notice of disconnection does not constitute payment, and the affected cable operator need not give the subscriber further notice prior to disconnecting service.
(4) A cable operator may add a reasonable collection charge to the subscriber’s bill if the billing amount is not appropriately contested and payment is not made within a reasonable period following the due date, unless prohibited by law.
(J) Voluntary disconnections and downgrades. A subscriber may at any time request that a particular service tier, pay channel, premium channel, informational service or the entire cable service be disconnected. In addition, where different levels of service are offered by a cable operator, a subscriber may request a downgrade from a particular level of service to a less comprehensive or less expensive level of service.
(1) For a service tier, premium channel or informational service which is voluntarily disconnected, a subscriber shall pay a pro rata share of the monthly rate for that service.
(2) Any refund due a subscriber after downgrade or disconnection (both for non-payment and voluntary) shall be made within 45 days after the downgrade or disconnection.
(K) Service requirement. If the cable operator fails to provide any material service requested by a subscriber or programmer in accordance with the standards set forth in the franchise, the company shall, after adequate notification and being afforded the opportunity to provide the requested service, promptly refund all deposits or advance charges paid for the service in question by the subscriber or programmer. If any subscriber terminates for any other reason, the cable operator shall refund the unused portion of any prepaid subscriber service fee, on a daily pro rata basis.
(L) Protection of subscriber privacy. A cable operator shall abide by any and all subscriber privacy rules or regulations of the federal or state governments. The cable operator shall be constantly alert to possible abuses of the right of privacy or other legal rights of any subscriber, programmer or general citizen resulting from any device or signal associated with the cable communications system. The possibility of such abuse may be discussed at every scheduled review session.
(M) Resolution of complaints/inquiries. A cable operator is required to develop a comprehensive complaint/inquiry resolution policy that is consistent with the rules and regulations outlined in this subchapter. The Cable Television Advisory Board will be authorized to specifically handle complaints or inquiries that are not satisfactorily resolved at the cable operator level.
(Prior Code, § 110.070) (Ord. 13-08, passed 6-3-2013)
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