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§ 114.01 SHORT TITLE.
   This chapter shall be known and cited as the cable communications regulatory ordinance.
(Ord. 660, passed - -2020)
§ 114.02 DEFINITIONS.
   For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
   ADMINISTRATOR. The Mayor or similar chief administrator of the city as may be elected or appointed.
   APPLICANT. Any multi-channel video program distributor that submits an application to the city in accordance with § 114.04 of this chapter.
   BASIC CABLE SERVICE. Any service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the franchise to be carried on the basic tier. BASIC CABLE SERVICE shall not be inconsistent with 47 U.S.C. § 543(b)(7).
   CABLE PROGRAMMING SERVICE.
      (1)   Any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than:
         (a)   Video programming carried on the basic service tier;
         (b)   Video programming offered on a pay per channel or pay per program basis; or
         (c)   A combination of multiple channels of pay per channel or pay per program video programming offered on a multiplexed or time shifted basis so long as the combined service:
            1.   Consists of commonly identified video programming; and
            2.   Is not bundled with any regulated tier of service.
      (2)   CABLE PROGRAMMING SERVICE not be inconsistent with the definition as set forth in 47 U.S.C. § 543(l)(2) and 47 C.F.R. § 76.901(b) (1993).
   CABLE SERVICE. The one-way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service. CABLE SERVICE shall not include any video programming provided as part of and via a service that enables users to access content, information, e-mail, or other services offered over the public internet.
   CABLE SYSTEM or SYSTEM. The meaning ascribed to it in applicable federal law.
   CITY. City of Garretson, Minnehaha County, South Dakota.
   COUNCIL. The Garretson City Council.
   FCC. The Federal Communications Commission.
   FRANCHISE. An initial authorization, or renewal thereof, issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system or other MVPD facility.
   FRANCHISE AREA. The area within the legal boundaries of the city.
   GRANTEE. The person which is granted a franchise in the city pursuant to this chapter, its agents and employees, lawful successors, transferees or assignees.
   MULTI-CHANNEL VIDEO PROGRAM DISTRIBUTOR or MVPD. A person such as, but not limited to, a cable operator, a multi-channel multi-point distribution service, a direct broadcast satellite service, an OVS provider, or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming.
   OPEN VIDEO SERVICES or OVS. Any video programming services provided to any person by a franchisee certified by the FCC to operate an open video system pursuant to 47 U.S.C. § 573, as may be amended, regardless of the facilities used.
   PAY TELEVISION. The delivery over the system of pay per channel or pay per program audio visual signals to subscribers for a fee or charge, in addition to the charge for basic cable service or cable programming services.
   PERSON. Any person, firm, partnership, association, corporation, company, or other legal entity.
   STANDARD INSTALLATION. Any residential installation which can be completed using a drop of 150 feet or less.
   STREET. The surface of, and the space above and below, any public street, road, highway, freeway, lane, alley, path, court, sidewalk, parkway, or drive, or any easement or right-of-way now or hereafter held by the city.
   SUBSCRIBER. Any person who lawfully receives cable service.
   VIDEO PROGRAMMING. Programming provided by, or generally considered comparable to programming provided by a television broadcast station.
(Ord. 660, passed - -2020)
§ 114.03 GRANT OF AUTHORITY AND GENERAL PROVISIONS.
   (A)   Franchise required. It shall be unlawful for any person to construct, operate or maintain a cable system or MVPD facility or to provide cable service, video programming or other MVPD services, including OVS, in the city without a franchise authorizing the same, unless applicable federal or state law prohibits the city’s enforcement of such a requirement.
   (B)   Grant of franchise. Any franchise that is granted in the city shall be subject to the terms and conditions contained herein.
   (C)   Grant of nonexclusive authority.
      (1)   A grantee shall have the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over and under the streets, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto in franchise area, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in franchise area of a cable system.
      (2)   A franchise shall be nonexclusive, and the city reserves the right to grant a similar use of said streets to any MVPD at any time; provided, however, that all franchises shall contain the same terms and conditions as this franchise in order that one MVPD is not granted a competitive advantage over another. In the event a MVPD commences operation without a franchise or is granted a franchise to operate by the city, and the terms and conditions of which do not comply with this chapter, then any other grantees shall have the right either to opt in to the competitor’s franchise by providing ten days prior written notice to the city; or to petition the city for modifications to its franchise, in which case the city shall work in good faith with the affected grantee(s) to review and adopt modifications which the grantee(s) deem necessary, review and approval by the city shall not be unreasonably withheld, delayed or conditioned.
      (3)   Before granting an additional franchise, the city shall give written notice to all grantees of any new application, identifying the applicant for such additional franchise and providing at least 30 days prior notice of the date, time, and place at which the city shall consider and/or determine whether such additional franchise should be granted.
      (4)   Every franchise shall apply to the entire service area of the city, as it exists now or may later be configured.
      (5)   In the event the city grants one or more additional franchises or one or more non-franchised MVPD’s commence providing cable service in the city, a grantee shall have the right to terminate or reduce the term of this franchise in its sole discretion.
      (6)   Neither the city nor grantee(s) may unilaterally alter the material rights and obligations set forth in this franchise. In the event of a conflict between any other ordinance and this franchise, the franchise shall control.
   (D)   Franchise term. A franchise shall be in effect for a period of up to 20 years from the effective date of the agreement, unless renewed, revoked, or terminated sooner as herein provided.
   (E)   Territorial area involved. A franchise shall be granted for the corporate boundaries of the city, as it exists from time to time. In the event of annexation by the city, or as development occurs, any new territory shall become part of the area covered; provided, however, that grantee(s) shall not be required to extend service beyond its present system boundaries unless there is a minimum of 25 homes per cable mile as measured from the last fiber node or terminating amplifier.
   (F)   Written notice. All notices, reports, or demands required to be given in writing under this chapter shall be deemed to be given when delivered personally to any officer of grantee or the city’s Administrator of this chapter as specified in a franchise.
(Ord. 660, passed - -2020)
§ 114.04 APPLICATION FOR NEW FRANCHISE.
   (A)   Applications.
      (1)   An application for an initial franchise to provide video programming shall be in writing on a form provided by the city which shall contain where applicable:
         (a)   The applicant’s name;
         (b)   The business address of the applicant;
         (c)   The name and contact information of a designated contact for the applicant;
         (d)   A description of the geographic area that the applicant proposes to serve;
         (e)   The PEG channel capacity and capital support proposed by the applicant;
         (f)   The term of the franchise proposed by the applicant;
         (g)   Whether the applicant holds an existing authorization to access the public rights-of-way in the subject franchise service area as described in 47 C.F.R. § 76.41(b)(5);
         (h)   Any additional information required by applicable state or local laws, if any; and
         (i)   The signature of an authorized officer of the applicant acknowledging the certification of the contents of the application and the applicant’s agreement to all terms and conditions of the proposed franchise which are contained therein.
      (2)   The initial franchise application may be evaluated according to the following criteria, and approved within 180 days after the city deems the application is complete. In the event applicant is already authorized to occupy the rights-of-way, the time for review and approval will be 90 days.
      (3)   The evidence of legal, technical and financial ability required in the applicant’s proposal will be such as to assure the ability to complete the entire system within a reasonable time from the date the franchise is granted. The city will also consider the applicant’s ability to operate the system and provide the necessary cable services or video programming in compliance with the terms of this chapter.
      (4)   The Administrator or designee shall prepare a report and make his or her recommendations respecting such application to the Council.
      (5)   A public hearing shall be set prior to any grant of a franchise, at a time and date approved by the Council. Within 30 days after the close of the hearing, the Council shall make a decision based upon the evidence received at the hearing as to whether or not the franchise(s) should be granted, and, if granted subject to what conditions.
      (6)   The city may consider any additional information that it deems applicable.
   (B)   Acceptance.
      (1)   By submitting an application, the applicant shall be deemed to have acknowledged the validity of the contents of the application and agreed to all of the terms and conditions thereof. If the application is approved by the Council, it shall be executed by the Administrator. Such execution by the Administrator shall be deemed the grant of a franchise for all purposes, and the applicant shall be deemed a grantee as defined herein.
      (2)   Upon approval of the Council and execution by the Administrator, grantee shall also deliver any insurance certificates required herein that have not been previously delivered with the application.
      (3)   Upon submission of the application and the execution thereof by the Administrator, grantee shall be bound by all the terms and conditions contained herein.
(Ord. 660, passed - -2020)
§ 114.05 CONSTRUCTION AND OPERATIONS STANDARDS.
   (A)   A grantee shall obtain all required permits from the city before commencing any construction upgrade or extension of the system.
   (B)   The city shall impose no permit fees upon a grantee.
   (C)   If at any time during the period of a franchise, the city shall elect to alter, or change the grade or location of any street, alley or other public way, a grantee shall, at its own expense, upon reasonable notice by the city, remove and relocate its poles, wires, cables, conduits, manholes and other fixtures of the system. If the city reimburses other occupants of the street, a grantee shall be likewise reimbursed.
   (D)   A grantee shall, on request of any person holding a moving permit issued by the city, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the person requesting the same, and a grantee shall be given not less than ten days advance notice to arrange for such temporary changes.
   (E)   A grantee shall have the authority to trim any trees upon and overhanging the streets, alleys, sidewalks, or public easements of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee.
   (F)   Nothing contained in this chapter shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring grantee’s facilities.
   (G)   In areas where all other utility lines are placed underground, grantee shall construct and install its cables, wires and other facilities underground. In any area where one or more public utilities are aerial, grantee may construct and install its cables, wires and other facilities from the same pole with the consent of the owner of the pole.
   (H)   A grantee shall at all times construct and operate its system in accordance with applicable FCC technical specifications.
   (I)   In the event that the use of any part of the system is discontinued for any reason for a continuous period of 12 months, or in the event such systems or property has been installed in any street or public place without complying with the requirements of this chapter, or the rights granted hereunder have been terminated, cancelled or have expired, grantee shall, subject to the rights of the city to acquire the system as specified herein, promptly remove from the streets, or public places all such property and poles of such system other than any which the city may permit to be abandoned in place. In the event of such removal, grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the city.
   (J)   Any property of grantee to be abandoned in place shall be abandoned in such a manner as the city may prescribe. Upon permanent abandonment of the property of grantee in place, it shall submit to the city an instrument to be approved by the city, transferring to the city the ownership of such property.
   (K)   All cable and passive equipment for cable television reception service installed by grantee at a subscriber’s location shall remain the property of grantee and grantee shall have the right to remove said cable and equipment. Upon termination of service to any subscriber, the grantee shall promptly remove all its above ground facilities and equipment from the premises of such subscriber upon his or her request.
   (L)   No poles or other wire-holding structures shall be erected by the grantee without prior approval of the designated representative of the Council with regard to locations, height, type or any other pertinent aspect, which approval shall not be unreasonably withheld. However, no locations of any pole or wire-holding structure of the grantee shall be a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the Council or its designated representative determines that the public convenience would be enhanced thereby.
   (M)   Where poles or other wire-holding structures already existing in use in serving the city are available for use by grantee, but it does not make arrangements for such use, the Council may require the grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the grantee are just and reasonable.
   (N)   Where the city or a public utility serving the city desires to make use of poles or other wire-holding structures of the grantee, but agreement therefore with the grantee cannot be reached, the Council may require the grantee to permit such use for such consideration as is just and reasonable and upon such terms as the Council determines the use would enhance the public convenience, and would not unduly interfere with the grantee’s operations.
   (O)   Grantee shall at all times maintain on file with the City Auditor a schedule setting forth all rates and charges to be made to subscribers for basic cable service, including installation charges.
   (P)   During the term hereof, the city may regulate rates only if authorized to do so by the FCC regulations and then such regulation shall only be in accordance with the provisions of such regulations.
(Ord. 660, passed - -2020) Penalty, see § 10.99
§ 114.06 OPERATION AND MAINTENANCE OF SYSTEM.
   A grantee shall render effective service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible.
   (A)   Service to schools and the city. A grantee shall, subject to the territorial area requirements of § 114.03(D), provide up to three outlets of basic cable service at no cost to the city to such locations under public ownership to be mutually agreed upon by the city and grantee.
   (B)   PEG channel. The grantee shall allocate one channel to the city as a public, educational or governmental access channel. Until such time as the city files a written request with grantee for full-time use of the channel, grantee shall have the right to use that portion of the channel capacity that is not being used by the city. Grantee shall have a reasonable period of time after notification to vacate its use of the channel. Grantee shall assist the city in obtaining the necessary licenses and frequency clearance to enable the city to use said channel.
   (C)   Emergency use. A grantee shall comply with the emergency alert requirements of federal law.
(Ord. 660, passed - -2020)
§ 114.07 INDEMNIFICATION OF THE CITY.
   (A)   A grantee shall indemnify, defend, and hold harmless the city, its officers, boards, committees, commissions, elected officials, employees and agents, from and against all liability, damages, and penalties which they may legally be required to pay as a result of the exercise of a franchise granted pursuant to this chapter, except claims covered by worker’s compensation insurance or any claims arising from or related to the city’s negligence. Nothing in this chapter relieves a person from liability arising out of the failure to exercise reasonable care to avoid injuring the grantee’s facilities while performing work connected with grading, regarding, or changing the line of a street or public place or with the construction or reconstruction of a sewer or water system.
   (B)   In order for the city to assert its rights to be indemnified, defended, and held harmless, the city must with respect to each claim:
      (1)   Promptly notify a grantee in writing of any claim or legal proceeding which gives rise to such right;
      (2)   Afford grantee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of any claim or proceeding; and
      (3)   Fully cooperate with reasonable requests of grantee, at grantee’s expense, in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to division (B) above.
(Ord. 660, passed - -2020)
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