(A) Unlawful to operate without a franchise. It shall be unlawful for any person to construct, operate or maintain a cable system or to provide cable service in the town without a franchise. The person shall be subject to a fine of $500 per day. The payment of the fine notwithstanding, all violators shall be subject to all other applicable provisions of this chapter, including but not limited to the payment of a franchise fee. Cable systems may elect for a statewide franchise granted under state law
(B) Franchises non-exclusive. Any franchise granted pursuant to this chapter shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, any additional franchises for a cable system or any component thereof, to any other person including itself, as it deems appropriate, subject to applicable federal and state law.
(C) Franchises nondiscriminatory. In the event the town grants more than one franchise or similar authorization for the construction, operation or maintenance of any cable system to a qualified person in the town, the town shall grant the franchises on terms that are nondiscriminatory and competitively neutral, provided that nothing herein shall be construed as requiring the use of identical terms or conditions, in accordance with federal law.
(D) Term of the franchise. A franchise agreement shall establish the term of each individual franchise.
(E) Federal, state and town jurisdiction.
(1) The town shall exercise appropriate regulatory authority under the provisions of this chapter, the Cable Act and all applicable laws. This authority shall be vested in the Town Board of Commissioners and administered through the Town Manager or his or her designee in order to provide day-to-day administration and enforcement of the provisions of this chapter and any franchise granted hereunder, and to carry out the town’s responsibilities with regard to cable service.
(2) This chapter shall be construed in a manner consistent with all applicable federal and state laws.
(3) In the event that the federal or state government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in a manner as to expand rather than limit municipal regulatory authority, the grantor may, if it so elects, adopt rules and regulations in these areas to the extent permitted by law, provided the same do not materially alter the rights and obligations of a grantee under any existing franchise.
(4) The grantee’s rights are subject to the police powers of the town to adopt and enforce ordinances necessary to the health, safety and welfare of the public. Grantee shall comply with all applicable general laws and ordinances enacted by the town pursuant to that power.
(5) The provisions of this chapter shall apply to all franchises granted or renewed after the effective date of this chapter. This chapter shall also apply to all existing franchises, to the extent not inconsistent with the terms of any franchise or applicable law. In the event of any conflict between the terms and conditions of a franchise agreement and the provisions of this chapter, and other generally applicable regulatory ordinances of the town, the terms of this chapter shall control unless otherwise expressly set forth in the franchise agreement. A franchise agreement (including all of grantee’s particular rights, powers, protections, privileges, immunities and obligations associated therewith as the same exist on the date hereof) shall constitute a legally binding contract between the town and grantee, and as such, cannot be amended, modified or changed by the town or grantee without the consent of grantee and grantor in any manner whatsoever, whether by ordinance, rule, regulation or otherwise, to impose on grantee more stringent or burdensome requirements or conditions; provided, however, that nothing herein contained shall preclude the town from the proper exercise of its police powers, or its powers of eminent domain.
(6) In the event of a change in state or federal law which by its terms would require the town to amend this chapter, the parties shall modify the existing franchise in a mutually agreed-upon manner.
(7) The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter or a franchise agreement by reason of any failure of the town to enforce prompt compliance.
(F) Rights reserved to grantor. In addition to any rights specifically reserved to grantor by this chapter or a franchise agreement, grantor reserves to itself every right and power that is required to be reserved by a provision of any other ordinance or under any other franchise.
(G) Franchise agreement.
(1) Every grantee shall agree to the terms and provisions of a franchise agreement as negotiated between the grantee and the grantor.
(2) In addition to those matters required elsewhere in this chapter to be included in the franchise agreement, each franchise agreement must contain the following express representations by each grantee:
(a) Grantee has examined all of the provisions of this chapter and accepts and agrees to all of the provisions of this chapter, as it exists as of the effective date of the grantee’s franchise agreement; and
(b) Grantee recognizes, unless otherwise agreed in the applicable franchise agreement, the right of the town to adopt any additional regulations of general applicability as it shall find necessary in the exercise of its police power.
(3) Every franchise agreement shall contain further conditions or provisions as may be negotiated between the town and a grantee, except that no conditions or provisions shall be such as to conflict with any provisions of state or federal law. In case of any conflict or of any ambiguity between any terms or provisions of a franchise agreement and this chapter, the provisions of this chapter shall control, unless expressly set forth in the franchise agreement.
(H) Initial franchise applications. Any person desiring an initial franchise for a cable system shall file an application with the town. An application for an initial franchise for a cable television system shall contain, where applicable:
(1) A statement as to the proposed franchise area;
(2) Resume or prior history of applicant, including the legal, technical and financial expertise of applicant in the cable television field;
(3) List of the partners, general and limited, of the applicant, if a partnership; or a list of the principals of the applicant, if a limited liability company; or the percentage of stock owned or controlled by shareholders holding 10% or greater, if a corporation;
(4) List of officers, directors and managing employees of applicant, together with a description of the background of each person;
(5) The names and addresses of any parent or subsidiary of applicant or any other business entity owning or in control of applicant, in whole or in part, or owned or controlled in whole or in part by applicant;
(6) A current financial statement of applicant verified by a CPA audit or otherwise certified to be true, complete, and correct to the reasonable satisfaction of the town;
(7) Proposed preliminary construction and cable service schedule; and
(8) Any additional information that the town may require for the administration of the franchise.
(I) Consideration of initial applications. Upon receipt of any application and application fee for an initial franchise, the Town Administrator shall prepare a report and make his or her recommendations respecting the application to the Board.
(J) Franchise renewal. Franchise renewals shall be in accordance with applicable law, including but not limited to the Cable Communications Policy Act of 1984, as amended, being 47 U.S.C. §§ 521 et seq.. Grantor and a grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.
(K) Grant of additional franchise and competing service. Competing or overlapping franchises may have an adverse impact on the public rights-of-way and on the quality and availability of services to the public. In considering whether to grant one or more additional franchises, the town shall specifically consider, and address in a written report or in provisions of the franchise agreement, the following issues:
(1) The positive and/or negative impact of an additional franchise on the community;
(2) The ability and willingness of the specific applicant in question to provide cable services to the franchise area;
(3) The amount of time it will take the applicant to complete construction of the proposed system and activate service in the franchise area; and whether the applicant can complete construction and activation of its system pursuant to industry standards;
(4) The financial capabilities of the applicant and its guaranteed commitment to make the necessary investment to erect, maintain and operate the proposed cable system for the duration of the franchise term. In order to ensure that any prospective grantee does have the requisite current financial capabilities, the town may request equity and debt financing commitment letters, current audited financial statements, bonds, letters of credit or other documentation to demonstrate to the town’s satisfaction that the requisite funds to construct and operate the proposed system are available;
(5) The quality and technical reliability of the proposed system, based upon the applicant’s plan of construction and the method of distribution of signals and the applicant’s technical qualifications to construct and operate the system;
(6) The experience of the applicant in the erection, maintenance and operation of a cable system;
(7) The capacity of the public rights-of-way to accommodate one or more additional cable systems and the potential disruption of those public rights-of-way and private property that may occur if one or more additional franchises are granted;
(8) The likelihood and ability of the applicant to continue to provide competing cable service to subscribers within the franchise area for the duration of the franchise;
(9) Any other information as the town may deem appropriate to be considered prior to granting any competing or overlapping franchise; and
(10) The purpose of this section is to ensure that any competition which may occur among grantees will be on terms which, when taken as a whole, are nondiscriminatory according to federal law.
(L) Permits for non-franchised entities.
(1) The town may issue a license, easement or other permit to a person other than the grantee to permit that person to traverse any portion of the grantee’s franchise area within the town in order to provide service outside, but not within the town. The license or easement, absent a grant of a franchise in accordance with this chapter, shall not authorize nor permit the person to provide cable service to any subscriber within the town nor render any other service within the town.
(2) The granting of the license, easement or permit shall be conditioned upon the payment of a fee for occupancy of the public right-of-way to the extent permitted by applicable law.
(M) Review for competition. The town recognizes that the cable television and telecommunications industries are in a period of convergence, that the technologies and services provided by these industries are rapidly changing, and that the Telecommunications Act of 1996 promoted and encouraged competition between and among these formally discrete industries. At this time it is premature to know fully the extent to which there will be changes in law, technology or services that may impact entities that have been or may be granted franchises or licenses to use the town’s rights-of-way. It is the desire of the town to be a communications-friendly town, that encourages the development of competitive advanced communications capabilities for the benefit of all its citizens. For this reason the regulatory ordinances and franchises of the town should not impede or restrict the fair opportunity to compete, but rather are intended to provide uniform and consistent requirements for all similarly situated providers.
(N) Application and renewal fees.
(1) An application fee shall not be deemed to be franchise fees within the meaning of § 622 of the Cable Act (47 U.S.C. § 542), and the payments shall not be deemed to be “payments in kind” or any involuntary payments chargeable against the compensation to be paid to the town by grantee, or part of the compensation to be paid to the town by grantee pursuant to this chapter or a franchise agreement.
(2) All applicants for an initial franchise grant shall submit an application fee of $2,500 to compensate the town for its costs in reviewing, preparing and awarding a franchise, including the costs of outside consultants. Upon grant of a franchise the town may request the payment of an additional fee to the extent that the reasonable costs of the franchise review and negotiation process exceed the initial application fee amount. Consistent with the Cable Act, being 47 U.S.C. §§ 521 et seq., all these fees shall not constitute or be credited towards a grantee’s franchise fee obligations. Reasonable costs include staff time, professional fees and administrative costs as determined necessary by the town.
(3) The town reserves the right, unless prohibited by applicable law, to require a grantee to pay the incidental costs of the franchise renewal and negotiation process. Incidental costs include staff time, professional fees and administrative costs as stated in the franchise agreement.
(Ord. eff. 10-8-2001)