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§ 114.017 ACCEPTANCE OF FRANCHISE; EFFECTIVE DATE.
   (A)   Time. Within 60 days after the Board has granted the franchise, the franchisee shall file with the Clerk to the Board a written acceptance of the franchise, acknowledged before a notary public. This acceptance shall acknowledge that the franchisee agrees to be bound by and to comply with the provisions of this chapter, and the assurances set forth in his or her application, and shall be of such form and of such content, as shall be satisfactory to and be approved by the County Attorney.
   (B)   Other requirements. Concurrently with the filing of the written acceptance, the franchisee shall file with the Clerk to the Board the bond and proofs of insurance as required by § 114.032(C), and § 114.032(E) or (F) and proof of loan commitments or other proof of ability to obtain construction funds.
   (C)   Effective date. The effective date of this franchise shall be the date on which the franchisee files the acceptance, bond, proofs of insurance, and proof of acquisition of construction funds as required herein, provided, however, if any of the material required to be filed with the acceptance or the acceptance itself is defective or fails to meet with approval, the franchise shall not be effective until such defect is cured or such approval is obtained.
(Ord. passed 10-18-1982)
§ 114.018 PROVISIONS GOVERNING THE TERM, RENEWAL, RENEGOTIATION, AND TRANSFER OF A FRANCHISE.
   (A)   Term. The franchise and rights therein granted shall take effect and be in force for a period of 15 years from and after the grant and acceptance date of the franchise, unless such time is extended by the Board of Commissioners.
   (B)   Termination of franchise. Upon termination of the franchise for whatever reason, including expiration or revocation, the county shall have the right to determine whether the franchisee shall be eligible to continue to operate and maintain the CATV system.
   (C)   Expiration of franchise. 
      (1)   Within three years of the expiration of the term of the franchise and subject to approval by the Board of Commissioners, the franchisee may negotiate renewal of its franchise for an additional period not inconsistent with FCC rules and regulations.
      (2)   The franchisee shall notify the county in writing not less than one year in advance of the expiration date of its desire to renew or not to renew the franchise. The county may propose certain franchise modifications to the franchisee and make any given renewal contingent upon acceptance of such modifications. Renewal shall be preceded by a public hearing held at least 30 days in advance of decision by the Board of Commissioners. A renewal may be granted not more than two years prior to the expiration of any existing term. The Board of Commissioners may determine whether or not the franchisee has performed satisfactorily its obligations under the franchise by reviewing the following:
         (a)   Technical developments and performances of the system;
         (b)   Programming;
         (c)   Other services offered;
         (d)   Cost of service;
         (e)   Compliance with any requirement in the chapter or in FCC regulations;
         (f)   Annual and other reports made to the county or the FCC;
         (g)   Extension of service; and
         (h)   Other matters of concern.
      (3)   In the event the current franchisee is determined by the Board of Commissioners to have performed unsatisfactorily, new applicants shall be sought and evaluated by the County Manager and Board of Commissioners and a franchise award may be made according to application and award procedures set forth herein.
   (D)   Revocation of franchise. The Board of Commissioners may terminate the franchise conferred under this chapter at any time prior to a date of expiration upon a finding that the franchisee has failed to cure one or more of the following defects:
      (1)   Material breach, whether by act or omission, of any terms or conditions of this franchise ordinance, or franchise agreement;
      (2)   Material misrepresentation of fact in the application for, or negotiation of, the franchise;
      (3)   Insolvency of the franchisee, or inability or unwillingness of the franchisee to pay its just debts when they accrue, or application of the franchisee for adjudication as a bankrupt;
      (4)   Failure to provide subscribers or users with adequate service in the best interest of the public convenience and welfare;
      (5)   Failure to have obtained authorization from all required governmental agencies and acceptable pole attachment agreements within 12 months after acceptance of the franchise provided the period of 12 months may be extended by the Board of Commissioners if the franchisee is diligently pursuing such authorization and the delay is not caused by any fault of the franchisee or results from strikes, natural disaster, or other occurrences over which the franchisee would have no control; and/or
      (6)   Full service failures.
         (a)   Failure to have full service available as set forth in franchisee’s application and in § 114.019(B) hereof, provided the period may be extended by the Board of Commissioners under the same circumstances set forth in division (D)(5) above.
         (b)   The franchisee shall have 60 days to remedy defects following written notice by the County Manager to the franchisee of such a defect. If any defect continues beyond the 60 days (or any extension thereof granted by the Board of Commissioners) without written proof that corrective action has been taken or is being actively and expeditiously pursued, the Board of Commissioners shall call a public hearing on the termination of the franchise. Immediately following the public hearing, the Board of Commissioners may, by resolution, declare that the franchise be terminated. At least ten days prior to the Board of Commissioners meeting at which the public hearing will be held, the County Manager shall cause to be served upon the franchisee a written notice of the public hearing on the question of termination. The notice shall state the time and place of the meeting.
         (c)   Should the county revoke the franchise, new applicants shall be sought and evaluated by the County Manager and Board of Commissioners and a franchise award may be made according to application and award procedures set forth herein.
   (E)   Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the system, or upon the termination of any lease covering all or a substantial part of the system, the franchisee shall notify the Board of Commissioners of such fact, and such notification shall be treated as a notification that a transfer in control of the franchise has taken place, and the provisions of division (G) below governing the consent of the Board of Commissioners to such change in control of the franchise shall apply.
   (F)   Receivership. The Board of Commissioners shall have the right to cancel this franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the company, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have vacated prior to the expiration of said 120 days, or unless:
      (1)   Within 120 days after his or her election or appointment, such receiver or trustee shall have fully complied with all the provisions of this chapter and remedied all defaults thereunder; and
      (2)   Such receiver or trustee, within said 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this chapter and the certification granted to the company.
   (G)   Transfer of control. 
      (1)   No transfer of effective ownership or control of the CATV system may take place, whether by forced or voluntary sale, lease, mortgage, assignment, encumbrance, or any other form of disposition, without prior notice to and approval by the Board of Commissioners. The notice shall include full identifying particulars of the proposed transaction, and the Board of Commissioners shall act by resolution.
      (2)   The franchisee shall not issue any additional capital stock and shall not permit the transfer of more than 10% of its presently outstanding shares without the prior written consent of Board of Commissioners. No sale, lease, assignment, or transfer shall be effective until the vendee, leasee, assignee, or transferee has filed with the county its acceptance of this grant.
      (3)   In the absence of extraordinary circumstances, the Board of Commissioners will not approve any such transactions before completion of construction of energized cable passing before each dwelling unit, as specified in § 114.019(B).
      (4)   Prior approval of the Board of Commissioners shall be required where ownership or control of more than 10% of the right of control of or interest in the franchise is acquired by a person or a group of persons acting in concert, none of whom already own or control 10% or more of such right of control or interest, singularly or collectively. Provided, however, that such Board of Commissioners approval shall not be unreasonably withheld after proper application is made therefor.
      (5)   Transfer of effective ownership of control shall not include:
         (a)   Pledge or hypotecation or mortgage or similar instrument transferring conditional ownership of all or part of the system’s assets to a lender, or creditor in the ordinary course of business so long as the lender does not thereby acquire the right to control the system’s operations; but no such transfer of conditional title can be made absolute or become effective without prior approval of the Board of Commissioners; or
         (b)   The disposition of facilities or equipment no longer required in the conduct of business.
Franchisee may hypotecate its interest under this chapter and the franchise agreement and in the CATV system to be constructed pursuant thereto for the purpose of securing a loan, the entire proceeds of which will be utilized in construction and operation of its CATV system in the franchise area.
      (6)   By its acceptance of the franchise, the franchisee specifically concedes and agrees that any acquisitions or transfers as set forth in this section without prior approval of the Board of Commissioners, as may be required, shall constitute a violation of the franchise agreement and this chapter by the franchisee.
   (H)   Continuing of service mandatory. The franchisee shall be required to provide continuous service to all subscribers in return for payment of the established fee. If the franchise agreement becomes void whatever reason, including normal expiration, revocation, or foreclosure, the franchisee is required, at the option of the county as a part of this franchise, to continue to operate the system for either a period of six months or until an orderly change of operation is effected whichever is the earlier. In the event the franchisee fails to operate the system or allows a lapse in service without prior approval of the Board of Commissioners, the county or its agent may operate the system until such time that a new operator is selected. If the county is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the county for any costs or damages that are the result of the franchisee’s failure to perform.
   (I)   Periodic review. 
      (1)   Because of the regulatory, technical, financial, marketing, and legal uncertainties associated with cable communications, the franchisee shall agree to the following review provisions in order to provide for a maximum degree of flexibility in this franchise and to help achieve a continued advance and modern system for the county.
         (a)   The county and the franchisee shall hold scheduled review sessions within 30 days of the fifth and tenth anniversary dates of the effective date of the franchise.
         (b)   Special review sessions may be held in the county courthouse at any time during the term of the franchise upon reasonable notice by either party to the other. A special review session shall be held in the event any clause or section of this chapter is voided, nullified, deleted, or modified by the authority of any regulatory agency including the FCC, and the franchisee will comply with the FCC rules within one year from adoption of the new rule.
      (2)   The following topics shall be discussed at every scheduled review session: service; rate structures; free or discounted services; application of new technologies; state of the art; system performances; services provided; programming offered; customer complaints; privacy in human rights; amendments to this chapter; undergrounding provisions; judicial and FCC rulings; and extension of service. In addition, other topics may be discussed as determined by the county.
      (3)   At either a scheduled or special review session, a public hearing may be called if, and as determined by, the Board of Commissioners.
(Ord. passed 10-18-1982) Penalty, see § 114.999
§ 114.019 FRANCHISE AREA AND EXTENSION OF SERVICE.
   (A)   Franchise territory. The franchise is for all of the county outside of the corporate limits of the towns.
   (B)   Service. 
      (1)   Within the second year after the effective date of the franchise the franchisee agrees to make available basic CATV service to all residents of the county within the basic service area as set forth in franchisee’s application. Thereafter, the franchisee shall provide service in all areas of the county contiguous to the franchisee’s then existing cables where the average density of residential units is equal to or greater than 30 residential units per cable mile, provided that the percentage of the franchise area to be served where there are 30 residential units per cable mile shall not be less than:
         (a)   Fifty percent at the end of two years;
         (b)   Seventy percent at the end of three years;
         (c)   Eighty percent at the end of four years; and
         (d)   One-hundred percent at the end of five years.
      (2)   The franchisee shall extend cable television service to those areas with an average density of at least 30 occupied residential units per mile of cable. In addition, the franchisee shall extend cable television service to areas of lesser density, upon written request of any five or more customers living within one-half mile from each other as follows: the franchisee shall determine the gross revenue that it would receive should franchisee aerially construct its cable system and extend cable television service to such customers assuming the requesting individual subscribed to the service. The franchisee shall also determine the costs of the requested construction. The franchisee shall also determine what would be its gross revenue were there 30 occupied dwellings per mile of cable and assuming that potential subscribers became franchisee’s customers at a rate equal to its system wide penetration rate within the county. The franchisee shall determine its gross annual yield on investment under both the former and the latter situations. The franchisee shall pay as its portion of the costs of extension an amount which would give it the same gross annual yield on investment in the former situation as it would have had in the latter situation. The balance the costs of construction shall be advanced, pro rata, prior to construction commencing, by the requesting customers. In addition, the requesting parties shall agree to pay for the service for a period of two years. For two years subsequent to completion of extension (or until there are 30 occupied dwellings per mile of cable along such extension), said pro rata shares shall be recalculated as additional customers along said extension subscribe to the franchisee’s system. Said additional customers shall pay their pro rata share of the subscriber service extension costs, and customers originally having made such payments shall receive a refund equal to the excess of their original pro rata subscriber extension costs payment over and recalculated pro rata share together with any prior refund. At the end of said two-year period, payments for the subscriber’s service extension costs remaining in the franchisee’s possession should be credited to its capital plant account.
(Ord. passed 10-18-1982) Penalty, see § 114.999
RATES AND CHARGES
§ 114.030 REGULATION OF RATES.
   (A)   Franchise fee. See § 114.031.
   (B)   Limitations on rates. The charges made to subscribers for services of the franchisee hereunder shall be fair and reasonable. The franchisee shall receive no consideration whatsoever from its subscribers other than in accordance with this section, without approval of the Board of Commissioners. The franchisee shall not charge rates for basic services and for installations and disconnections in excess of the rate schedule appearing in the franchisee’s application unless approved in accordance with division (C) below.
   (C)   Adjustment to rates. 
      (1)   Initial rates and charges for basic sources and for installation and disconnect shall be fixed in the franchise application. Thereafter, the county or the franchisee may request rate adjustments at any time. After a public hearing affording due notice to the franchisee and other interested persons, the Board of Commissioners may adjust rates. (Public hearing advertisement to be once per week in a newspaper of general circulation in the county for two weeks preceding hearing.) The criterion to determine whether rates adjustments shall be permitted are the same as those currently set forth in G.S. Chapter 162 for rate adjustment hearings related to rate adjustments for public utilities other than motor carriers and certain water and sewer utilities. The franchisee may appeal the decision of the Board to the courts as permitted by law.
      (2)   However, the franchisee may increase or decrease its rates at any time, without prior Board approval, provided that no increase has been made in the preceding six months and provided that the annualized rate of increase within a given 12-month period shall not exceed the average annual rate of increase over the preceding 12 months in the Consumer Price Index for all Urban Consumers U.S. City Average Other Utilities and Public Services (1967-100) as published by the United States Department of Labor, Bureau of Labor Statistics. (In the event that at any time the United States Department of Labor begins publishing a Consumer Price Index on the annual cost adjustments in cable television costs in particular then that index and its base year shall be used in lieu of the index for other utilities and public services.) The franchisee shall notify the county in writing at least 90 days in advance of the effective date of any proposed rate increase within the limits set forth above. The county may then challenge the increase and schedule meetings, hearings, request additional information, or take whatever action it deems appropriate. If no such action is taken within 60 days of receipt of original written notice by the county, then the increase will automatically take effect.
      (3)   Except as set forth in division (C)(2) above rates shall not be changed without Board approval, except that nothing in this provision shall prohibit the reduction or waiving of charges in conjunction with promotional campaign for the purpose of attracting subscribers.
   (D)   Refunds to subscribers and users. 
      (1)   If any subscriber terminates any monthly service during the first six months of said service because of failure of a franchisee to render the service offered, the franchisee shall refund to such subscriber an amount equal to all charges paid by the subscriber during the period in which no service was received.
      (2)   If any subscriber terminates for any reason any monthly service prior to the end of a prepaid period, a pro rata portion of any prepaid subscriber service fee shall be refunded to the subscriber by the franchisee using number of months as the basis.
   (E)   Advance charges and deposits.
      (1)   A franchisee may require subscribers to pay the installation charge in advance and to pay for each month of basic service in advance at the beginning of each month. Additionally, franchisee may charge deposit fees for converters as set forth in their application but not to exceed franchisee’s cost.
      (2)   No other advance payment or deposit of any kind shall be required by a franchisee for basic subscriber service. Other than for a converter, nothing in this provision shall be construed to prohibit charges for initial installation, relocation, or reconnection. The franchisee may also sell to consumers converters on terms specified in the application.
   (F)   Installation and reconnection. Except as otherwise provided elsewhere in this chapter, a franchisee may make a charge to subscribers for the installation of service outlets and for the reconnection of service outlets. The rates for such connection or reconnection shall be as authorized in the rate schedule detailed in division (B) above.
   (G)   Other governmental regulation of rates. If in the future, the state or the United States Government or any regulatory agency thereof regulates the rates of the franchisee for the service provided for in the franchise, this section shall be of no effect during such regulation to the extent of any conflict therewith.
   (H)   Public service installation. The franchisee shall without charge for installation, maintenance, or service make single installations of its standard CATV service facilities to those public buildings operated by the county and the county’s Board of Education when the building is located on the franchisee’s system when the system is constructed consistent with the requirements of this chapter. Such installations shall be made at such reasonable locations as shall be requested by the County Manager. Any charge for relocation of such installation shall, however, be charged at actual cost. Additional installations at the same location may be made at actual cost. No monthly service charges shall be made for distribution of the franchisee’s basic service, including access channels, within such publicly owned buildings.
   (I)   Charges for public access. Charges to users of the franchisee’s production facilities for public access programming shall not exceed actual costs incurred. Such charges shall be publicly posted and made available at no cost to anyone upon request. Charges shall be clearly and completely stated in the operating rules for public access programming. Such charges may be amended only upon approval by the Board of Commissioners. The franchisee shall furnish standard playback facilities and labor at actual cost incurred for the public access channel.
(Ord. passed 10-18-1982) Penalty, see § 114.999
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