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Upon termination of the franchise for whatever reason, including expiration or revocation, the Board of Alderpersons shall have the right to determine whether the franchisee shall be eligible to continue to operate and maintain the CATV system.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
(A) Upon the expiration of the term of the franchise and subject to approval by the Board of Alderpersons, the franchisee may negotiate renewal of its franchise for an additional period, not inconsistent with FCC rules and regulations.
(B) The franchisee shall notify the Board in writing no less than one year in advance of the expiration date of its desire to renew or not to renew the franchise. The Board may propose certain franchise modifications to the franchisee and make any given renewal contingent upon acceptance of the modifications. Renewal shall be preceded by a public hearing held at least 30 days in advance of a decision by the Board of Alderpersons. A renewal may be granted not more than two years prior to the expiration of any existing term. The Board of Alderpersons may determine whether or not the franchisee has performed satisfactorily its obligations under the franchise by reviewing the following:
(1) Technical developments and performance of the system;
(2) Programming;
(3) Other services offered;
(4) Cost of service;
(5) Compliance with any requirement in this chapter or in FCC regulations;
(6) Annual and other reports made to the Board or the FCC;
(7) Extension of service; and
(8) Other matters of concern.
(C) In the event the current franchisee is determined by the Board of Alderpersons to have performed unsatisfactorily, new applicants shall be sought and evaluated by the Board and the Town Administrator/Town Clerk and a franchise award may be made according to the application and award procedures set forth in this chapter.
(D) Upon failure to renew the franchise following expiration of the term of the franchise, the Board shall have the right of first refusal to purchase the CATV system. Should the Board decide to purchase the system, it shall do so at a price not to exceed its then fair market value. In determining the fair value of the system, the original cost of all tangible and intangible property, as well as the salvage value, the book value, the replacement cost, cash flow and other factors, including outstanding debts of the system to be assumed by the Board, may be considered. Under no circumstances shall any valuation be made for “good will” or any right or privilege granted by this chapter. Should a dispute arise over the determination of the fair value of the system, the dispute shall be resolved by arbitration, as provided in § 110.025.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
(A) The Board of Alderpersons 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 chapter or the franchise agreement;
(2) Material misrepresentation of fact in the application for or negotiation of the franchise;
(3) Insolvency of the franchisee, 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 execution of the franchise agreement; provided, that the period of 12 months may be extended by the Board of Alderpersons, if the franchisee is diligently pursuing the 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; or
(B) The franchisee shall have 60 days to remedy defects, following written notice by the Town Administrator/Town Clerk to the franchisee of the defect. If any defect continues beyond the 60 days (or any extension thereof granted by the Board of Alderpersons) without written proof that corrective action has been taken or is being actively and expeditiously pursued, the Board of Alderpersons shall call a public hearing on the termination of the franchise. Immediately following the public hearing, the Board of Alderpersons may, by resolution, declare that the franchise be terminated. At least ten days prior to the Board of Alderpersons’s meeting at which the public hearing will be held, the Town Administrator/Town Clerk 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. In the event that the Board revokes the franchise, the Board shall have the right of first refusal to purchase the CATV system at a price not to exceed its depreciated book value (that is, original cost of property less accumulated depreciation). The book value or assumption of debt, whichever is larger (provided debt is no larger than the recognized mortgage value of the system) shall be determined by the Board in accordance with generally accepted appraisal and accounting principles. Under no circumstances shall any valuation be made for “good will” or any right or privilege granted by this chapter. Should a dispute arise over the determination of the fair value of the system, the dispute shall be resolved by a panel of three appraisers, one to be selected by the Board, one to be selected by the franchisee and the third to be selected by the other two appraisers. Should the Board and the franchisee fail to agree on the third appraiser, the choice shall be made by the senior resident judge of the superior court of the judicial district in which the town is located.
(C) Should the Board revoke the franchise and fail to purchase the system, new applicants shall be sought and evaluated by the Town Administrator/Town Clerk and Board of Alderpersons and a franchise award may be made according to the application and award procedures set forth in this chapter.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
(A) 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 Alderpersons of the fact. The notification shall be treated as a notification that a transfer in control of the franchise has taken place and the provisions of § 110.027 of this chapter governing the consent of the Board of Alderpersons to the change in control of the franchise shall apply.
(B) The Board of Alderpersons shall have the right to cancel the 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 the receivership or trusteeship shall have vacated prior to the expiration of the 120 days, or unless:
(1) Within 120 days after his or her election or appointment, the receiver or trustee shall have fully complied with all the provisions of this chapter and remedied all defaults hereunder; and
(2) The receiver or trustee, within the 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby the receiver or trustee assumes and agrees to be bound by each and every provision of this chapter and the certificate granted to the company.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
(A) No transfer of effective ownership or control of the CATV system may take place, whether by force or voluntary sale, lease, mortgage, assignment, encumbrance or any other form of disposition, without prior notice to and approval by the Board of Alderpersons. The notice shall include full identifying particulars of the proposed transaction and the Board of Alderpersons shall act by resolution.
(B) 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 the Board of Alderpersons. No sale, lease, assignment or transfer shall be effective until the vendee, lessee, assignee or transferee has filed with the Board its acceptance of this grant.
(D) Prior approval of the Board of Alderpersons 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 the right of control or interest, singularly or collectively; provided, that the Board of Alderperson’s approval shall not be unreasonably withheld after proper application is made therefor.
(E) “Transfer of effective ownership or control” shall not include:
(1) Pledge or hypothecation or mortgage or similar instrument transferring conditional ownership or 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 transfer of conditional title can be made absolute or become effective without prior approval of the Board of Alderpersons; or
(2) The disposition of facilities or equipment no longer required in the conduct of business.
(F) The franchisee may hypothecate 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. All terms and conditions contained in the hypothecation agreement shall be subject to the prior approval of the Board of Alderpersons and the successor in interest shall own and operate the CATV system subject to all provisions of this chapter and the franchise agreement.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
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 for whatever reason, including normal expiration, revocation or foreclosure, the franchisee is required, at the option of the Board and as a part of the franchise, to continue to operate the system until an orderly change of operation is effected. In the event the franchisee fails to operate the system or allows a lapse in service without prior approval of the Board of Alderpersons, the Board or its agent shall operate the system until the time as a new operator is selected. If the Board is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the Board for any costs or damages that are the result of the franchisee’s failure to perform.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
In the event the Board elects to revoke the franchise or fails to renew the franchise and providing the Board elects not to purchase the system, the Board may require that the system be sold to a franchisee designated by the Board of Alderpersons, at a purchase price that shall be equivalent to the fair market value determines in the same manner described in § 110.024 of this chapter.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
(A) 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 the franchise and to help achieve a continued advanced and modern system for the town.
(1) The Board and the franchisee shall hold scheduled review sessions within 30 days of the fifth and tenth anniversary dates of the franchisee’s obtaining certification for the system from the FCC.
(2) Special review sessions may be held in the Board’s meeting place 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.
(B) 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 Board.
(C) At either a scheduled or special review session, a public hearing may be called, if and as determined by the Board of Alderpersons.
(Prior Code, § 4.1-10) (Ord. passed 9-19-1979)
FRANCHISE SERVICE AREA
(A) The franchise is for the area described in § 110.002.
(B) The franchisee agrees to make available basic CATV service to all residents of the town within the basic service area, subject to the provisions of § 110.047 of this chapter. The franchisee shall accomplish significant construction within one year after receiving Commission certification and shall thereafter equitably and reasonably extend energized trunk cables into a substantial percentage of its franchise area each year; the percentage shall be not less than:
(1) Fifty percent at the end of two years;
(2) Seventy percent at the end of three years;
(3) Eighty percent at the end of four years; and
(4) Ninety percent at the end of five years.
(Prior Code, § 4.1-11(b)) (Ord. passed 9-19-1979)
The franchisee may negotiate with any citizen or group of citizens outside the corporate limits for the extension of CATV service. Service may be extended to areas outside the corporate limits, provided there is no deterioration of service to citizens inside the corporate limits that results from the extension and provided all residents of the town have service available if they desire it. Negotiations for extension of service shall in no way result in any change in rate schedules.
(Prior Code, § 4.1-11) (Ord. passed 9-19-1979)
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