Section
General Provisions
114.001 Short title
114.002 Intent
114.003 Definitions
114.004 Captions
114.005 Franchise required
114.006 Establishment of franchise requirements
114.007 Franchise applications
114.008 Franchise processing costs
114.009 Compliance with state and federal laws
114.010 Address for service of notices; local office and telephone number
114.011 Public notice
114.012 No recourse against grantor
114.013 Rights reserved to the grantor
114.014 Rights reserved to a grantee
114.015 Theft of services and tampering
114.016 Integration
Administration; Enforcement
114.030 Nonenforcement by the grantor
114.031 Annual reports
114.032 Plant survey report
114.033 Copies of federal and state reports
114.034 Public reports
114.035 Complaint file and reports
114.036 Privacy report
114.037 Miscellaneous reports
114.038 Income tax returns
114.039 Inspection of facilities
114.040 Business office; records and files
114.041 Public inspection
114.042 Failure to report
114.043 False statements
114.044 Cost of reports
114.045 Remedies for franchise violations
114.046 Procedure for remedying franchise violations
114.047 Force majeure; grantee’s inability to perform
Grant of Franchise
114.060 General
114.061 Franchise territory
114.062 Use of public streets and ways
114.063 Duration
114.064 Franchise nonexclusive
114.065 Transfer of ownership or control
114.066 Franchise renewal
114.067 Police powers
114.068 Franchise fee
114.069 Forfeiture or revocation
114.070 Procedures/termination of expiration
114.071 Receivership and foreclosure
Regulation of Franchise
114.085 Regulatory authority
114.086 Regulatory responsibility
114.087 Public usage of the system
114.088 Reservation by grantor
114.089 Uniform rates
114.090 Rate change procedure
114.091 Annual review of performance
114.092 System and services review
114.093 Public benefit capacity management
Financial and Insurance Provisions
114.105 Construction bond
114.106 Performance bond
114.107 Security fund
114.108 Employer bonding
114.109 Indemnification
114.110 Insurance
Design and Construction
114.125 System design
114.126 Geographical coverage
114.127 Cablecasting facilities
114.128 System construction schedule
114.129 Remedies for delay in construction
114.130 Undergrounding of system components
114.131 New development undergrounding
114.132 Undergrounding at multiple-dwelling units
114.133 Street occupancy
114.134 Construction and technical standards
114.135 Area-wide interconnection
Service
114.150 Services to be provided
114.151 Basic subscriber television service
114.152 Basic subscriber radio service
114.153 Institutional service
114.154 Additional subscriber service
114.155 Local organization channels
114.156 Government access channels
114.157 Educational access channels
114.158 Public access channels
114.159 Public access channels; closed circuit
114.160 Leased access channel
114.161 Universal connection
Operation and Maintenance
114.175 Open books and records
114.176 Records required
114.177 Maintenance and complaints
114.178 Rights of individuals
114.179 Continuity of service mandatory
114.180 Grantee rules and regulations
114.181 Tenant rights
114.999 Penalty
GENERAL PROVISIONS
The city finds that the development of telecommunications systems and the availability of such services within the community holds a potential for providing public benefit for residents. Because of the complex and rapidly changing technology associated with telecommunications systems, the city finds that the public convenience, safety, and general welfare can best be served by establishing certain regulatory powers vested in the city or such persons as the city shall designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose associated with the creation and operation of local telecommunications system(s) within the community. The city in addition finds that any and all telecommunication systems wishing to utilize the public streets and rights-of-way shall be subject to city regulation to the fullest extent possible consistent with law, and that all such telecommunications systems may only offer service within the community under franchise, and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.
(2011 Code, § 14.02.020)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Additionally, for the purpose of this chapter the following terms, phrases, words, and their derivations, and those within any franchise agreement awarded under this chapter, shall have the meaning given herein and in a franchise. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular number, and words in the singular number include the plural number. The word shall is mandatory and may is permissive. Words not defined shall be given their common and ordinary meaning. Where there may be a conflict between the definitions herein and those definitions made part of any franchise awarded hereunder, the definitions within a franchise shall prevail.
A/B SWITCH or INPUT SELECTOR SWITCH. Any device that enables a viewer to select between off-air broadcast television signals received via antenna and other voice-video-data services delivered to the end user via a hard wire.
ACCESS CHANNEL. A dedicated governmental, educational, or public channel which is carried on the system pursuant to a franchise agreement and provided as a part of a basic tier or level of services.
ACT 84. The Cable Communications Policy Act of 1984, being 47 U.S.C. §§ 521 et seq.
ACT 92. The Cable Televison Consumer Protection and Competition Act of 1992, being 47 U.S.C. §§ 521 et seq.
ANNUAL GROSS REVENUES. All revenue derived in any manner or form from the operation(s) of an individual TCS system and attributable to end users, subscribers, or customers utilizing such system within the municipality.
APPLICANT. A person submitting an application or proposal to the city for a license or franchise (where required) to operate a TCS system under the terms and conditions set forth in this chapter, and any state regulations.
APPLICATION or PROPOSAL. The process by which the applicant submits a request and indicates a desire to be granted a license or franchise (where required) for all, or a part, of the city. An APPLICATION or PROPOSAL includes all written documentation, and verbal statements and representations, in whatever form or forum, made by an applicant to the City Council/Franchising Authority concerning the construction, rendering of services, maintenance, or any other matter pertaining to the proposed TCS system.
ASSIGNMENT OF A FRANCHISED TCS PROVIDER’S FRANCHISE or TRANSFER OF TCS PROVIDER’S FRANCHISE. Any transaction or action which effectively or actually changes operational or managerial control from one person or entity to another.
AUXILIARY EQUIPMENT. Equipment supplied by the TCS provider (such as a converter, remote control unit, or input selector switch), which enhances or assists in the reception or provision of TCS service.
BASIC CABLE TELEVISION SERVICE. Any service tier which includes the retransmission of local television broadcast signals.
BASIC TCS SERVICE. The entry level or lowest cost level of service made available by a TCS provider to users.
CABLE CHANNEL or CABLE TELEVISION CHANNEL or DATA CHANNEL. A portion of the electromagnetic or light frequency spectrum which is capable of delivering a television channel (as television channel is defined by the FCC regulation).
CABLE OPERATOR or OPERATOR. Any person or group of persons who: provides cable television service over a cable system and directly or through one or more affiliates owns a significant interest (at least 10%) in such cable system; or otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
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 service.
CABLE SYSTEM or CABLE TELEVISION SYSTEM. A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video, voice or data programming, and which is provided to multiple subscribers within the city. However, such terms do not include the following:
(1) A facility that serves only to retransmit the television signals of one or more broadcast stations;
(2) A facility that serves only subscribers in one or more multiple-unit dwellings under common ownerships, control, or management unless such facility or facilities uses any public rights-of-way;
(3) A facility or a common carrier which is subject, in whole, or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of § 621(c) of Act 84 B codified at 47 U.S.C. § 541) to the extent such facility is used in the transmission of video, voice, or data programming or service directly to subscribers; or
(4) Any facilities of any electric utility used solely for operating its electric utility.
CHANNEL-VIDEO. Any portion of the system’s frequency bandwidth which is dedicated by system design for the delivery of one Class A video signal from the system headend to end users via a hard wire or other means regardless of whether such services are actually provided, including any channel designated for governmental, educational, or public use.
CHARGE. A one-time or non-regularly occurring cost paid by the subscriber or user, and which is associated with the installation, maintenance, service, or repair of the telecommunications system’s service.
CITY. The City of Linden, Michigan, or its lawful successor, which is the lawful legislative body for the City of Linden, Michigan.
COLLECTION CHARGE. A charge or fee imposed on a customer by a TCS provider for such providers efforts at collecting, or attempting to collect, a past due account.
CONVERTER. Any electric, electronic, or other device, separate and apart from the subscriber’s receiver, that is capable of converting or changing signals to a frequency not intended to be susceptible to interference within the television, video, or data receiver of a subscriber, and by an appropriate channel or other type of selector may also permit a subscriber to view or otherwise use signals delivered at designated dial locations, or such other reception and use allocations as may be applicable and required for the practical use of the signal.
CUSTOMER. A subscriber, or actual subscriber, or actual user of the services and/or facilities of the TCS system provided by a TCS provider.
DBS. Direct broadcasting satellite.
DBS PROVIDER or DIRECT BROADCAST SATELLITE PROVIDER. Any person who delivers and/or provides TCS services from a satellite to a subscriber’s residence through the use of a small earth or satellite station.
DECODER or DESCRAMBLER. A device which enables a subscriber to convert a scrambled signal into a viewable or otherwise useable signal.
DISASTER EMERGENCY or DISASTER or EMERGENCY. An imminent, impending, or actual natural or humanly induced situation wherein the health, safety, or welfare of all, or a representative portion of the residents of the city is threatened. A DISASTER EMERGENCY (by illustration) may include a snowstorm, flood, tornado, severe thunderstorm, hazardous waste infiltration, petroleum, munitions, nuclear explosion, or aircraft crash.
DROP. A small branch of cable, or other transmitting medium, which connects the terminals on the back of the subscriber’s receiver to the feeder cable or future technical equivalent on the street, easement, right-of-way, or public way.
EASEMENT. Includes any public easement or other compatible use created by dedication, or by other means, to the city for public utility purposes or any other purpose whatsoever, including cable television, or any other TCS provider. EASEMENT shall include a private easement used for the provision of cable service or any other telecommunications service.
FCC or FEDERAL COMMUNICATIONS COMMISSION. The federal administrative agency, or lawful successor, authorized to oversee cable television and other TCS regulation on a national level.
FIBER OPTICS. Very thin and pliable cylinders, or strands of glass or plastic, or any future developed technical equivalent, used to carry wide bands of multiple frequencies.
FRANCHISE. The initial authorization, or subsequent renewal granted by the City Council/Franchising Authority in order for a person to construct, operate, and maintain a franchised TCS system in all, or part, of the city.
FRANCHISE or FRANCHISE AGREEMENT. The nonexclusive rights granted pursuant to this chapter to construct and operate a cable or other telecommunications system along the public way within all of or a specified area in the municipality. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the municipality as required by other ordinances and laws of the franchising authority. FRANCHISE and FRANCHISE AGREEMENT shall both also mean an agreement between the grantor and a grantee, approved by resolution of the City Council, containing the specific provisions of a franchise granted, including referenced specifications, franchise applications, and other related material.
FRANCHISE AUTHORITY or CITY COUNCIL/FRANCHISING AUTHORITY. The City Council for the City of Linden, Michigan. This definition specifically includes the situation wherein the City Council in its franchising authority capacity grants a franchise, or renews a franchise, or approves a franchise transfer by an applicant for a TCS franchise, or a franchised TCS provider.
FRANCHISE EXPIRATION. The date of expiration, or the end of the term of a franchised TCS provider, as provided under a franchise agreement.
FRANCHISE FEE. The license, use, or rental fee required by the grantor of a grantee in consideration of a limited grant for the use of the public streets and rights-of-way.
FRANCHISED TCS PROVIDER. A person that is awarded a franchise by the City Council/Franchising Authority to construct and operate a franchised TCS system, within all, or part, of the city. The term FRANCHISED TCS PROVIDER specifically includes the term CABLE OPERATOR.
GRANTEE. Any person receiving a franchise pursuant to this chapter and under the granting franchise ordinance, and its lawful successor, transferee, or assignee.
GRANTOR or MUNICIPALITY. The City of Linden as represented by the City Council or any delegate acting within the scope of its jurisdiction.
HEADEND. The electronic control center, where incoming signals, including those of television broadcast stations are amplified, modulated, filtered, converted, or in any way processed or converted for redistribution to subscribers. The HEADEND processes the TCS system’s return capability and provides interface between the subscriber and any institutional networks or any other networks, transmission, or retransmission facilities.
HOLIDAY. A day in which a substantial portion of the areas workers are exempt from work even though paid, including, but not limited to, all HOLIDAYS recognized by either the state or federal government.
HUB. The satellite or remote receiving, processing, and/or transmitting facility, enabling the signal to be extended beyond the physical/electronic capabilities of the TCS electronics and/or serve as a remote switching facility.
INSTITUTIONAL NETWORK. A communications network which is constructed and operated by the TCS provider and which is generally available only to subscribers who are not residential subscribers.
LATE CHARGE. A charge which is added to a subscriber’s account or bill for non-payment of a previously due and delinquent account.
MDS. Multi-point distribution system.
MDS PROVIDER or MULTI-POINT DISTRIBUTION SYSTEM PROVIDER. Any person or group of persons who is authorized by the FCC to transmit (via super high frequency) specialized telecommunications programming or data or facsimile transmission to subscriber selected locations.
MULTI-CHANNEL PROGRAMMING SERVICE or MULTI-CHANNEL 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 programing service.
NORMAL BUSINESS HOURS. The weekday or weekend hours when a TCS provider customer service office is regularly open for processing customer service inquiries, requests, and/or complaints.
ORDINANCE. This City of Linden Telecommunications Service Regulatory Ordinance.
OTHER PROGRAMMING SERVICE. Information that a TCS provider (specifically including a cable operator) makes available to all subscribers generally.
PAY-PER-VIEW or PREMIUM CHANNEL. The delivery over the TYCS system of audio and/or video signals in an unintelligible form to subscribers for a fee or charge (over and above the charge for standard or basic service) on a per-program or per-channel basis where said unintelligible or unusable form for viewing is made intelligible only to subscribers paying a separate fee or charge for the viewing or use of the signals.
PERSON. Any individual, corporation, business trust, estate, trust, partnership, association of two or more persons having a joint common interest, governmental agency, or other legal entity, including the city.
PROPOSED ABANDONMENT OF MULTI-CHANNEL SERVICE or PROPOSED WITHDRAWAL OF TCS SERVICE or PROPOSED CESSATION OF TCS SERVICE. The anticipated, contemplated, imminent, or expected (either voluntary or involuntary) disruption, discontinuance, desertion, or removal of a TCS provider’s operation and provision of TCS service from all, or part, of the city for a projected period exceeding three months in duration.
PUBLIC, EDUCATIONAL, OR GOVERNMENTAL ACCESS FACILITIES. Channel capacity designated exclusively for public, educational, or governmental use and facilities and equipment for the use of such channel capacity.
PUBLIC WAY. Any public street, public way, public place, or rights-of-way, now laid out or dedicated, and all extensions thereof, and additions thereto, in the area served by the TCS provider.
RATE. The monthly, bi-monthly, quarterly, semi-annual, annual, or other periodic price by a subscriber in order to receive standard or basic, tiered, clustered, premium, or pay-per-view TCS service.
REASONABLE NOTICE. Written notice addressed to a grantee at its principal office or such other office as a grantee has designated to the grantor as the address to which should be transmitted to it, which notice shall be delivered by first class, certified U.S. mail.
REASONABLE ORDER. A written order from the city to a grantee that does not require, in the opinion of a reasonable person, either excessive or extreme response by a grantee which is beyond the intention of a franchise agreement.
RESIDENT. Any person residing in the city as otherwise defined by applicable law.
REVOCATION, TERMINATION, or NON-RENEWAL. An official act by the city whereby the City Council/Franchising Authority removes, repeals, or rescinds previously approved authorization for a licensed for franchising TCS provider to conduct the running of a TCS system within the city.
SECTION. Any section, division, or provision of this chapter.
SERVICE CLUSTER. The grouping, aligning, or packaging of one or more TCS programming services by category (such as sports and/or news), or by rate, or by some other identifiable method, and charging a separate price or rate for each SERVICE CLUSTER.
SERVICE DAY. Any day or other 24-hour period, other than a Sunday, in which employees of the TCS provider regularly respond to service requests and calls.
SERVICE OUTAGE. The loss of picture or sound on all standard or basic subscriber channels, or one or more auxiliary programming channels (including tiers and clusters), and which is not caused by the subscriber’s television receiver or by the subscriber.
SERVICE TIER. A category of TCS service or other programming service provided by a TCS provider, and for which a separate rate is charged by a TCS provider.
SMAT. A satellite master antenna television system.
SMATV OPERATOR or SATELLITE MASTER ANTENNA TELEVISION OPERATOR. Any person or group of persons who: provides TCS service over a SMATV system; or otherwise controls or is responsible for, through any arrangement, the management of a SMATV system.
SMATV SYSTEM. A private TCS system, not crossing any public right-of-way and which is located on private property, and serving private dwellings. TCS programming services are obtained via an earth station, amplification, and a distribution system.
STANDARD TCS SERVICE. The lowest priced or least comprehensive service cluster or service tier available to residential subscribers.
STATE. The State of Michigan.
STREET. The surface of, and the space above and below, a public street, road, highway, land path, public way or place, alley, court, boulevard, parkway, drive, or other easement now or hereafter held by the city (including any STREET, as defined, which is acquired by eminent domain) for the purposes of public travel and shall include other easements or rights-of-way now or hereafter held by the city (including any easements or rights-of-way acquired by eminent domain) which shall, with their proper use and meaning, entitle the city and TCS provider to use thereof for the purpose of installing or transmitting TCS system transmissions over poles, wires, cable, conductors, ducts, conduits, viaducts, manholes, amplifiers, appliances, attachments, and other property as may ordinarily be necessary and pertinent to a TCS system.
SUBSCRIBER or USER. A person lawfully receiving TCS service delivered by a TCS provider.
TCS PROVIDER. Any person or group of person who: provides electronic communications services(s) over a system of individual or multiple channels and directly or indirectly owns a significant interest in such a system; or who otherwise controls or is responsible through any arrangement, the management and operation of such a TCS system.
TCS SERVICE. Any telecommunications service provided as the result of a franchise award subject to this chapter and those services normally and usually provided by a cable operator. DBS operator or direct broadcast satellite provider, MDS provider or multi-point distribution system provider, MMDS provider, and SMATV operator, and any other future electronic communication service which may utilize any or all of the public rights-of-way for the distribution and/or transmission of its services to the public.
TELECOMMUNICATIONS ADVISORY COMMITTEE or COMMISSION. The Telecommunications Advisory Committee or Commission for the City of Linden, Michigan.
U.S.C. The United States Code.
USER. A person or organization utilizing a telecommunications system and/or its equipment for purposes of production and/or transmission of material, as contracted with receipt thereof in a subscriber capacity.
USER FEE. Any fee required by the municipality in payment for the private use of the public streets, easements, public ways, or rights-of-way in order to construct, maintain, and operate a TCS information distribution or collection system.
VIDEO PROGRAMMING. Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
WORK DAY. A day in which the city offices are regularly open for business.
(2011 Code, § 14.02.030)
No telecommunications system or other information or communications distribution or exchange network shall occupy, wholly or in part, the streets, alleys, or public rights-of-way within the geographical boundaries of the city without first receiving a license or franchise for that purpose following a public hearing.
(2011 Code, § 14.02.050) Penalty, see § 114.999
The grantor may establish appropriate requirements for new franchises or franchise renewals, consistent with law and FCC rules, and may modify the requirements in this chapter from time to time to reflect changing operational or technical conditions of the telecommunications industry state-of-the-art. Any modification in such requirements shall not be retroactive to franchises then in effect.
(2011 Code, § 14.02.060)
Applicants for a telecommunication system franchise shall submit to the grantor written applications utilizing the format and procedure specified and required by the grantor and shall submit such applications at the time and place designated by the grantor for accepting applications. All applications for a franchise shall include any grantor designated application fee.
(2011 Code, § 14.02.070)
For either new or renewal franchise award, a grantee shall bear all reasonable franchising costs which may include, but shall not be limited to: cost of legal notices and necessary publications prior to any public meeting provided for pursuant to a franchise; development and publication of relevant ordinances and franchise agreements; fees, and any cost not covered by the applications fees, incurred by the grantor in its study, preparation of proposal solicitation documents, evaluation of all applications, including, but not limited to, reasonable consultant and attorney fees and grantor staff time.
(2011 Code, § 14.02.080)
(A) Notwithstanding any other provisions of this chapter to the contrary, a grantee shall, at all times, comply with all laws and regulations of the state and federal government or any administrative agencies thereof.
(B) Provided, however, if any such state or federal law or regulation shall require a grantee to perform any service, or shall permit a grantee to perform any service, or shall prohibit a grantee from performing any service, in conflict with the terms of this chapter or resulting franchise or of any law or regulation of the grantor, then as soon as possible following knowledge thereof, a grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or this franchise.
(2011 Code, § 14.02.090) Penalty, see § 114.999
(A) Any telecommunications services franchise grantee shall maintain, within the franchise area throughout the term of its franchise, an address for service of notices by mail.
(B) A grantee shall also maintain, within the franchise area, a local office and telephone number for the conduct of matters related to a franchise during normal business hours.
(2011 Code, § 14.02.110) Penalty, see § 114.999
A grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents, employees, or representatives for any loss, costs, expense, or damage arising out of any provision or requirement of a franchise award or because of the enforcement of a franchise.
(2011 Code, § 14.02.130)
(A) Right of inspection of construction. The grantor shall have the right to inspect all construction or installation work performed subject to the provisions of a franchise awarded hereunder and to make such tests as it shall find necessary to ensure compliance with the terms of a franchise and other pertinent provisions of law.
(B) Right of intervention. The grantor shall have the right of intervention in any suit or proceeding to which a grantee is party, and a grantee shall not oppose such intervention by the grantor.
(2011 Code, § 14.02.140)
Should a grantee be dissatisfied with any material decision or ruling of the grantor pertaining to a telecommunications system established hereunder, a grantee may pursue such other remedies as are available, including the bringing of action in any court of competent jurisdiction.
(2011 Code, § 14.02.150)
No person, whether or not an authorized system user of a telecommunications system, may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment, or apparatus of a grantee, or commit any act with intent to cause such damage, or to tap, tamper with, or otherwise connect any wire or device to a wire, cable, conduit, equipment, and apparatus, or appurtenances of a grantee with the intent to obtain a signal or impulse from the system without authorization from or compensation to a grantee, or to obtain cable television or other communications service with intent to cheat or defraud a grantee of any lawful charge to which it is entitled.
(2011 Code, § 14.02.160) Penalty, see § 114.999
ADMINISTRATION; ENFORCEMENT
A grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter or resulting franchise agreement by reason of any failure of the grantor to enforce compliance. Any failure by grantee to meet all terms and conditions of a franchise, whether so notified by grantor or not, shall constitute grounds for revocation of a franchise awarded hereunder or the denial of a franchise renewal.
(2011 Code, § 14.04.010)
(A) As may be required in a franchise awarded hereunder, at the grantor’s sole option, within 60 days after the close of a grantee’s fiscal year, a grantee shall submit a written annual report to the grantor clerk, in a form approved by the grantor, including, but not limited to, such information specified within a franchise awarded subject to this chapter.
(B) Such information may include:
(1) A summary of the previous year’s (or, in the case of the initial report year, the initial year’s) activities in development of the telecommunications system, including, but not limited to, services begun or discontinued during the reporting year, and the number of subscribers or customers for each class of service;
(2) A financial statement certified by an officer of a grantee, including a statement of income, revenues, operating expenses, value of plant, annual capital expenditures, depreciation with an attached depreciation schedule, interest paid, taxes paid, balance sheets, and a statement of sources and application of funds;
(3) A current statement of costs of construction by component categories;
(4) A projected income statement and statement of projected construction for the next two years;
(5) A list of grantee’s officers, members of its board of directors, and other principals of a grantee;
(6) A list of stockholders or other equity investors holding 5% or more of the voting interest in a grantee and its parent, subsidiary, and affiliated corporations and other entities, if any; and/or
(7) To the extent that money, other than profits, is paid to a parent subsidiary, or other person affiliated with a grantee, the amounts of such payments and the basis for computation of such amounts (e.g., the basis for computing any management fees or share of home office overhead).
(2011 Code, § 14.04.020) Penalty, see § 114.999
At the grantor’s sole option, the grantee shall upon a request by the grantor, submit to the grantor an annual plant/system survey report which shall be a complete survey of a grantee’s distribution system including a full report thereon. Said report shall include, but not be limited to, those matters that in the judgment of the grantor are necessary for the full regulation of such system. Said report may include: a description and as-built maps of the portions of the franchise area that have been connected to, or have telecommunications services available, and appropriate engineering evaluation including suitable electronic measurements conducted in conformity with such requirements, including supervision, as the grantor may prescribe. Said report shall be in sufficient detail to enable the grantor to ascertain that the service requirements and technical standards of the FCC and/or a franchise are achieved and maintained. As may be required in a franchise awarded hereunder, and at the grantor’s request, but no more often than once per three years, a grantee and the grantor may agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of a system built and operated under provisions of this chapter. The cost of such evaluation shall be borne equally by a grantee and the grantor.
(2011 Code, § 14.04.030)
A grantee hereunder shall submit to the grantor copies of all pleadings, applications, reports, communications, and documents of any kind, submitted by a grantee to, as well as copies of all decisions, correspondence, and actions by, any federal, state, and local courts, regulatory agencies, and other government bodies relating to its operations within the franchise area. A grantee shall submit such documents to the grantor simultaneously with their submission to such courts, agencies, and bodies; and within five days after their receipt from such courts, agencies, and bodies. A grantee hereunder hereby waives any right to claim confidential, privileged, or proprietary rights to such documents unless such confidential rights are confidential by law or by the practices of federal or state agencies. However, proprietary data exempt from public disclosure shall be retained in confidence by the grantor and its authorized agents and shall not be made available for public inspection.
(2011 Code, § 14.04.040) Penalty, see § 114.999
A copy of each of a grantee’s annual and other periodic public reports and those of its parent, subsidiary, and affiliated corporations and other entities, as the grantor requests and is reasonably appropriate, shall be submitted to the grantor within five days of its issuance.
(2011 Code, § 14.04.050) Penalty, see § 114.999
(A) An accurate and comprehensive file shall be kept by a grantee of any and all complaints regarding the system built or operated under the provisions of this chapter. A procedure which may be detailed within a franchise awarded hereunder may be established by a grantee by the time of installation of the system to remedy complaints quickly and reasonably to the satisfaction of the grantor. A franchise procedure may require a grantee to maintain complete records of a grantee’s actions in response to all complaints. Such files and records shall remain open to the public during normal business hours.
(B) As may be required in a franchise, a summary of complaints, identifying the number and nature of complaints and their disposition, in a form approved by the grantor, shall be completed for each month and submitted to the grantor by the tenth day of the succeeding month unless provisions of a franchise awarded hereunder provides otherwise.
(C) As may be required in a franchise, the results of an annual opinion survey report which identifies satisfaction or dissatisfaction among the users of any telecommunications services offered by a grantee shall be submitted to the grantor no later than two months after the end of a grantee’s fiscal year. The surveys required to make said report may be in the form of questionnaires transmitted to users within one or more bills for service.
(2011 Code, § 14.04.060) Penalty, see § 114.999
(2011 Code, § 14.04.070) Penalty, see § 114.999
A grantee shall submit to the grantor such other information or reports in such forms and at such times as the grantor may reasonably request or require.
(2011 Code, § 14.04.080) Penalty, see § 114.999
As may be required in a franchise awarded hereunder, a grantee shall submit to the grantor copies of all income tax returns and reports which are filed with the local, state, or federal governments pertaining to its cable system in the franchise area within five days of the date on which such reports are filed.
(2011 Code, § 14.04.090) Penalty, see § 114.999
A grantee shall allow the grantor to make inspections of any of a grantee’s facilities and equipment at any time upon reasonable notice, or, in case of emergency, upon demand without prior notice, to allow grantor to verify the accuracy of any submitted report.
(2011 Code, § 14.04.100) Penalty, see § 114.999
A grantee shall maintain an office within the general franchise area and shall keep complete and accurate books and records. As provided in a franchise awarded hereunder, following reasonable notice, the grantor shall have the right to inspect at any time during normal business hours all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results, and other like materials of a grantee which relate to the operation of the telecommunications system. Access to the aforementioned records shall not be denied by a grantee on the basis that said records contain confidential, privileged, or proprietary information.
(2011 Code, § 14.04.110) Penalty, see § 114.999
Following reasonable notice from the grantor to a grantee, the refusal, failure, or neglect of a grantee to file any of the reports required, or such other reports as the grantor reasonably may request, shall be deemed a material breach of a franchise awarded hereunder, and shall subject a grantee to all remedies, legal or equitable, which are available to the grantor under a franchise awarded hereunder or otherwise.
(2011 Code, § 14.04.130)
Any materially false or misleading statement or representation made knowingly by a grantee in any report required under a franchise awarded hereunder shall be deemed a material breach of a franchise awarded hereunder and shall subject a grantee to all remedies, legal or equitable, which are available to the grantor under a franchise awarded hereunder or otherwise.
(2011 Code, § 14.04.140) Penalty, see § 114.999
(A) If a grantee fails to perform any obligation under a franchise awarded hereunder, or fails to do so in a timely manner, the grantor may at its option, and in its sole discretion:
(1) Assess against a grantee monetary damages up to the limits established in a franchise agreement for material franchise violations, which a grantee hereby agrees to pay, said assessment to be levied against the security fund, herein above provided, and collected by the grantor immediately upon said assessment. The grantor and a grantee agree that the amount of such assessment shall be deemed, without proof, to represent liquidation of damages actually sustained by the grantor by a reason of a grantee’s failure to perform. Such assessment shall not constitute a waiver by the grantor of any other right or remedy it may have under a franchise awarded hereunder or under applicable law, including without limitation, its right to recover from a grantee such additional damages, losses, costs, and expenses, including actual attorney fees, as may have been suffered or incurred by the grantor by reason of or arising out of such breach of a franchise awarded hereunder. This provision for assessment of damages is intended by the parties to be separate and apart from the grantor’s right to enforce the provisions of the construction and performance bonds provided for in §§ 114.105 through 114.110 and is intended to provide compensation to the grantor for actual damages;
(2) As may be provided in a franchise awarded hereunder, violations considered by the grantor to have materially degraded the quality of service, order and direct a grantee to issue rebates or reduce its rates and/or charges to users, in an amount solely determined by the grantor and provided for within a franchise awarded hereunder, to provide monetary relief substantially equal to the reduced quality of service resulting from a grantee’s failure to perform;
(3) Require, subject to existing federal law and FCC rules, that a grantee cure all defaults and breaches of its obligations hereunder before a grantee is entitled to increase any rate or charge to users hereunder as may be specified within a franchise awarded hereunder; and/or
(4) Terminate a franchise awarded hereunder, for any of the causes stated within this chapter.
(B) No remedy shall be imposed by the grantor against a grantee for any violation of this franchise without a grantee being afforded due process of law, as provided within this chapter.
(C) The grantor may, in its sole judgment and discretion, impose any or all of the above enumerated measures against a grantee, which shall be in addition to any and all other legal or equitable remedies it has under this franchise or under any applicable law.
(2011 Code, § 14.04.160) Penalty, see § 114.999
(A) In the event that the grantor determines that a grantee has violated any provision of a franchise awarded hereunder, any rule or regulation promulgated pursuant hereto or any applicable federal, state, or local law, the grantor may make a written demand on a grantee as provided within a franchise awarded hereunder, that it remedy such violation.
(B) If the violation, breach, failure, refusal, or neglect is not remedied to the satisfaction of the grantor within 30 days following such demand, the grantor shall determine whether or not such violation, breach, failure, refusal, or neglect by a grantee was excusable or inexcusable, in accordance with the following procedure.
(1) A public hearing shall be held and a grantee shall be provided with an opportunity to be heard upon 30 days’ written notice to a grantee of the time and place of the hearing provided and the allegations of franchise violations.
(2) If, after notice is given and, at a grantor’s option, a full public proceeding is held, the grantor determines that such violation, breach, failure, refusal, or neglect by a grantee was excusable as provided within this chapter, the grantor shall direct a grantee to correct or remedy the same within such additional time, in such manner, and upon such terms and conditions as the grantor may direct.
(3) If, after notice is given and, at a grantor’s option, a full proceeding is held, the grantor determines that such violation, breach, failure, refusal, or neglect was inexcusable, then the grantor may assess a penalty or remedy in accordance with § 114.045 above.
(4) If, after notice is given and, at a grantor’s option, a full public proceeding is held, the grantor declares a franchise awarded hereunder or any renewal thereof breached, the parties may pursue their remedies pursuant to a franchise or any other remedy, legal or equitable.
(2011 Code, § 14.04.170) Penalty, see § 114.999
In the event a grantee’s performance of any of the terms, conditions, obligations, or requirements of a franchise awarded hereunder is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided a grantee has notified the grantor in writing within 30 days of its discovery of the occurrence of such an event. Such causes beyond a grantee’s reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies.
(2011 Code, § 14.04.180)
GRANT OF FRANCHISE
(A) In the event that the grantor shall grant to a grantee a nonexclusive, revocable franchise to construct, operate, and maintain a telecommunications system within a franchise area, a franchise awarded hereunder shall constitute both a right and an obligation to provide the services of a telecommunications system as required by the provisions of this chapter and a franchise agreement. A franchise agreement shall include those provisions of a grantee’s application for franchise that are finally negotiated and accepted by the grantor and grantee.
(B) Regarding any franchise granted hereunder, the terms and conditions contained herein shall be consistent with the grantor charter and/or statutory requirements, which are incorporated by this reference as if fully set forth herein.
(C) Any franchise granted is hereby made subject to the general provisions of this chapter or hereafter made effective. Nothing in a franchise awarded hereunder shall be deemed to waive the requirements of the various codes and ordinances of the grantor regarding permits, fees to be paid, or manner of construction.
(2011 Code, § 14.08.010)
No franchise granted pursuant to this chapter shall exclude any area, portion, or part of the city. Any grantee awarded a franchise as provided by this chapter shall plan, design, and construct a system capable of providing services to all residential and commercial units within the city as provided within a franchise awarded hereunder. The service area shall be the entire incorporated geographical limits of the city. The initial service shall be that portion of the franchise territory scheduled to receive initial service, as stated in a franchise agreement.
(2011 Code, § 14.08.020)
For the purpose of operating and maintaining a telecommunications system in a franchise area subject to the provisions of this chapter, a grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, across, and along the public streets and ways within a franchise territory such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, a grantee shall, in each case, file plans with the appropriate grantor agencies and local utility companies and receive written approval before proceeding.
(2011 Code, § 14.08.030)
The term of any franchise and all rights, privileges, obligations, and restrictions pertaining thereto shall be established by a franchise agreement, however, no franchise term may exceed ten years from the effective date of a franchise awarded hereunder. The effective date of a franchise awarded hereunder shall be the date of execution of a franchise agreement by the grantor, subject to prior execution by a grantee.
(2011 Code, § 14.08.040)
(A) Subject to provisions of any effective FCC rules, any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned, or disposed of, including, but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior consent of the grantor, and then only under such conditions as the grantor may establish, and such consent as required by the grantor shall not be unreasonably withheld; provided, however, that no such authorization shall be required for any such transfer to a parent, subsidiary, or subsidiary of a parent of a grantee. If any transfer of a franchise occurs without the prior consent of the grantor, a franchise awarded hereunder may, at grantor’s sole option, be terminated immediately. No authorization of the grantor shall be required for any mortgage, pledge, or other encumbrance of this agreement of a grantee’s cable system as security for monies borrowed.
(B) A grantee shall notify the grantor within 30 days of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of a grantee. The word control as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of 10% of the voting shares of a grantee. Every change, transfer, or acquisition of control of a grantee shall make a franchise awarded hereunder subject to termination unless and until the grantor shall have consented thereto, which consent shall not be unreasonably withheld; provided, however, that no such authorization shall be required for any mortgage, pledge, or other encumbrance of the stock of a grantee as security for monies borrowed. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the grantor may inquire into the qualifications of the prospective controlling party and a grantee shall assist the grantor in any such inquiry. In seeking the grantor’s consent to any change in ownership or control, a grantee shall have the responsibility:
(1) To show to the reasonable satisfaction of the grantor whether the proposed purchaser, transferee, or assignee (the “proposed transferee”) which in the case of a corporation, shall include all officers, directors, employees, and all persons having a legal or equitable interest in 5% or more of its voting stock, or any of the proposed transferee’s principals:
(a) Has ever been convicted or held liable for acts involving moral turpitude, including, but not limited to, any violation of federal, state, or local law or regulations, or is presently under an indictment, investigation, or complaint charging such acts;
(b) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; and/or
(c) Has pending any legal claim, lawsuit, or administrative proceeding arising out of or involving a cable system.
(2) To establish, to the reasonable satisfaction of the grantor, the financial solvency of the proposed transfer by submitting all current financial data for the proposed transferee which a grantee was required to submit in its franchise application, and such other data as the grantor may request. Financial statements shall be audited, certified, and qualified by an independent certified public accountant, approved by the grantor; and/or
(3) To establish to the satisfaction of the grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of a franchise under the existing franchise terms.
(C) The grantor agrees that any financial institution having a pledge of a franchise or its assets for the advancement of money for the construction and/or operation of a franchise awarded hereunder shall have the right to notify the grantor that it or its designee, satisfactory to the grantor, will take control and operate the cable television system, in the event of a grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer franchise to another grantee. If the grantor finds that such transfer, after considering the legal, financial, character, technical, and other public interest qualities of the applicant, is satisfactory, the grantor will transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the grantor to such transfer shall not be unreasonably withheld.
(D) The consent or approval of the grantor to any transfer of a grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this chapter.
(E) In the absence of extraordinary circumstances, as determined by the grantor in its sole judgment, the grantor will not approve any transfer or assignment of a franchise awarded hereunder prior to substantial completion of construction of the proposed system.
(F) In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to a franchise agreement.
(2011 Code, § 14.08.060) Penalty, see § 114.999
(A) Renewal not required. Unless otherwise required by federal law or FCC rules, nothing in any franchise agreement shall require renewal of a franchise by the grantor after the term of a franchise awarded hereunder has expired.
(B) Term. The renewal of any franchise shall be set by a franchise agreement but shall not be greater than ten years.
(C) Renewal procedure.
(1) A franchise renewal procedure may be established within a franchise awarded hereunder. A nonrefundable application fee established by the grantor in an amount necessary to cover the costs of processing the request for renewal may be imposed by the grantor.
(2) A franchise renewal application when filed shall be available for public inspection at places designated by the grantor. As provided within a franchise awarded hereunder, a public hearing may be held on the application where a grantee’s record of compliance with a franchise requirement, its record of satisfactory service, and the terms and conditions proposed for a franchise renewal period shall be reviewed.
(3) Following receipt of a request for renewal of a franchise granted hereunder, the grantor shall initiate a review process which shall determine a grantee’s past level of overall compliance with a franchise agreement, its level of services, its application of new technology, and cooperation with the grantor to best meet the community needs.
(4) At a time determined by the grantor, the grantee will be invited to provide a formal franchise renewal application. The application shall set forth in detail a franchisee’s legal, character, financial, and other pertinent qualifications sufficient to make a determination to renew or terminate such franchise.
(5) Based upon the above criteria, the grantor may, at its sole option, decide to renew a franchise awarded hereunder under appropriate terms and conditions, or not to renew a franchise awarded hereunder.
(6) If the grantor’s decision is not to renew a franchise, the grantor may initiate public solicitations for applications for a new franchise. The original grantee shall not be precluded from submitting such an application.
(7) In any renewal or public solicitation, the grantor may require additional services, system upgrade, or any other conditions it deems feasible and appropriate in the light of the state of the art of the cable communications industry at that time.
(2011 Code, § 14.08.070)
(A) In accepting a franchise awarded hereunder, a grantee acknowledges that its rights hereunder are subject to the police power of the grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the grantor pursuant to such power.
(B) Any conflict between the provisions of this chapter and any other present or future lawful exercise of the grantor’s police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any grantee or telecommunications system which contains provisions inconsistent with a franchise shall prevail only if, upon such exercise, the grantor finds an emergency exists constituting a danger to health, safety, property, or general welfare of such exercise is mandated by law.
(2011 Code, § 14.08.080)
(A) Annual franchise payment. A grantee awarded hereunder shall pay to the grantor an annual fee in an amount as designated in a franchise agreement for the use of the public rights-of-way. Such payment shall be in addition to any other franchise requirement and commence as of the effective date of a franchise awarded hereunder. At the request of the grantor, the grantee shall furnish a statement, certified by an officer of a grantee, reflecting the total amounts of annual gross revenues and all payments, deductions, and computations for the period covered by the payment.
(B) Acceptance by grantor. No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of a grantee.
(C) Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, the grantee shall pay as additional compensation:
(1) An interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate in effect upon the due date or as otherwise established within a franchise awarded hereunder; and
(2) A sum of money equal to 5% of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.
(D) Payment computation. Payment due the grantor under this provision shall be computed quarterly, for the preceding quarter as of March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than 30 days after the dates listed in the previous sentence. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the grantor.
(E) Fee payment initiation. Following the issuance and acceptance of a franchise awarded hereunder, a grantee shall initiate franchise fee payments to the grantor at the intervals and rate specified in a franchise agreement.
(2011 Code, § 14.08.090)
(A) Grounds for revocation. The grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with a franchise awarded hereunder in the following circumstances, each of which shall represent a default and breach under this chapter and a franchise grant:
(1) If a grantee should default in the performance of any of its material obligations under this chapter or under such documents, agreements, and other terms and provisions entered into by and between the grantor and a grantee;
(2) If a grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds as required herein;
(3) If any court of competent jurisdiction, or any federal or state regulatory body by rules, decisions or other action determines that any material provision of a franchise documents, including this chapter, is invalid or unenforceable prior to the commencement of system construction;
(4) If a grantee should willfully violate any orders or rulings of any regulatory body having jurisdiction over a grantee relative to a franchise unless such orders or rulings are being contested by a grantee in a court of competent jurisdiction;
(5) If a grantee ceases to provide services for any reason within the control of the grantee over a telecommunications system, grantee shall not be declared at fault or be subject to any sanction under any provision of this chapter in any case in which performance of any such provision is prevented for reasons beyond a grantee’s control. A fault shall not be deemed to be beyond a grantee’s control if committed by a corporation or other business entity in which a grantee holds a controlling interest, whether held directly or indirectly;
(6) If a grantee attempts to evade any of the provisions of this chapter, FCC rules, a franchise agreement, or practices any fraud or deceit upon the grantor;
(7) If a grantee’s construction schedule is delayed for more than 12 months later than the schedule contained in a franchise agreement and after due process, the grantor finds the delay was not excusable; and/or
(8) If a grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt.
(B) Procedure prior to revocations.
(1) The grantor may make written demand that a grantee comply with any requirement, limitation, term, condition, rule, or regulation or correct any action deemed cause for revocation. If the failure, refusal, or neglect of a grantee continues for a period of 30 days following such written demand, the grantor may immediately initiate franchise revocation procedures and shall cause notice of such action to be served upon a grantee, at least ten days prior to the date of a franchise revocation hearing, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published at least once, ten days before such meeting in a newspaper of general circulation within a franchise area.
(2) The grantor shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal, or neglect by a grantee was with just cause.
(3) If such failure, refusal, or neglect by a grantee was with just cause, the grantor shall direct a grantee to comply within such time and manner and upon such terms and conditions as are reasonable.
(4) If the grantor shall determine such failure, refusal, or neglect by a grantee was without just cause, then the grantor may, by resolution, declare that franchise awarded hereunder to such grantee shall be terminated and security fund and bonds forfeited unless there be compliance by a grantee within such period as the grantor may fix or as established within a franchise.
(2011 Code, § 14.08.100)
(A) Disposition of facilities. In the event a franchise expires, is revoked, or otherwise terminated, the grantor may order the removal of the system facilities from a franchise area within a reasonable period of time as determined by the grantor, or require the original grantee to maintain and operate its system until a subsequent grantee is selected and a subsequent or modified telecommunications system becomes operational.
(B) Restoration of property. In removing its plant, structures, and equipment a grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to a grantee’s removal of its equipment and appliances without affecting the electrical or telephone cable wires, or attachments. The grantor shall inspect and approve the condition of the public ways and public places, and cables, wires, attachments and poles after removal. The liability, indemnity, and insurance, and the security fund and bonds provided therein, shall continue in full force and effect during the period of removal and until full compliance by a grantee with the terms and conditions of this section.
(C) Restoration by grantor; reimbursement of costs. In the event of a failure by a grantee to complete any work required by division (A) above and/or division (B) above, or any other work required by the grantor or a franchise awarded hereunder, the grantor may cause such work to be done and a grantee shall reimburse the grantor the cost thereof within 30 days after receipt of an itemized list of such costs or the grantor may recover such costs through the security fund or bonds provided by grantee. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
(D) Extended operation. Upon either the expiration or revocation of a franchise, the grantor may require a grantee to continue to operate the cable communications system for a defined period of time not to exceed 24 months from the date of such expiration or revocation. A grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this chapter and a franchise agreement and to provide the regular user services and any and all of the services that may be provided at that time. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
(E) Grantor’s right not affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the grantor under a franchise awarded hereunder or any provision of law.
(2011 Code, § 14.08.110)
(A) Any franchise awarded hereunder, at the option of the grantor, shall cease and terminate 120 days after the appointment of a receiver or receivers to trustee or trustees to take over and conduct the business of a grantee whether in a receivership, reorganization, bankruptcy, or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
(1) Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and a franchise granted pursuant hereto, and the receivers or trustees within said 120 days shall have remedied all defaults under a franchise awarded hereunder; and
(2) Such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of a franchise herein granted.
(B) In the case of a foreclosure or other judicial sale of the system, plant, property, and equipment of a grantee, or any part thereof, including or excluding a franchise, the grantor may serve notice of termination upon a grantee and the successful bidder at such sale, in which event a franchise herein granted and all rights and privileges of a grantee hereunder shall cease and terminate 30 days after service of such notice, unless:
(1) The grantor shall have approved the transfer of a franchise awarded hereunder, as and in the manner in this chapter provided; and
(2) Such successful bidder shall have covenanted and agreed with the grantor to assume and be bound by all terms and conditions of a franchise awarded hereunder.
(2011 Code, § 14.08.120)
REGULATION OF FRANCHISE
(A) The grantor shall exercise appropriate regulatory authority under the provisions of this chapter and applicable law.
(B) If a franchise area served by a telecommunications system also serves other contiguous or neighboring communities, the grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of telecommunication services and related communication services.
(2011 Code, § 14.12.010)
The grantor, acting alone or acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:
(A) Administering and enforcing the provisions of a telecommunications system franchise(s);
(B) Coordination of the operation of government and educational system usage;
(C) Providing technical, programming, and operational support to public agency users, such as government departments, schools, and health care institutions;
(D) Establishing procedures and standards for the public use and sharing of the public facilities, if provided for in a franchise agreement;
(E) Planning expansion and growth of public benefit telecommunications services;
(F) Analyzing the possibility of integrating telecommunications services with other local, state, or national telecommunications networks; and/or
(G) Formulating and recommending long-range telecommunications policy.
(2011 Code, § 14.12.020)
(A) If so specified in a franchise agreement, the grantor may require that a portion of the telecommunications system capacity and associated facilities and resources be designated for the development and use by the public or in the public interest.
(B) In furtherance of this purpose, the grantor may establish a commission, public operation, or other entity to receive and allocate facilities, support funds, and other considerations provided by a grantee and/or others.
(C) Such public corporation, if established, may be delegated the following responsibilities:
(1) Receive and utilize or reallocate for utilization, system capacity, facilities, funding, and other support provided specifically for public usage of the telecommunications system;
(2) Review the status and progress of each service developed for public benefit;
(3) Reallocate resources on a periodic basis to conform with changing priorities and public needs; and/or
(4) Report to the grantor annually on the utilization of resources, the new public services developed, and the benefits achieved for the community and its residents.
(2011 Code, § 14.12.030)
The grantor reserves the right, at its discretion, from time to time, to determine if the entity described in § 114.087 is performing its purpose in a manner satisfactory to the grantor, and if it is not, the grantor may receive and reallocate all or a portion of the system’s capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in § 114.087.
(2011 Code, § 14.12.040)
(A) A grantee shall establish service rates that must be applied uniformly to all users in the franchise area for its services in accordance with a franchise agreement.
(B) Service user rates shall be effective for a minimum of one year from when the services commence or, in the event of new construction, until two years after grantee has completed all construction proposed in its application, whichever is longer, or as otherwise may be required by a franchise awarded hereunder.
(2011 Code, § 14.12.050)
(A) A grantee subject to provisions of this chapter may not increase any rate or charge for any of its services without first filing notice of such proposed increased rate or charge with the grantor clerk and all affected system users. Such advance notice of a proposed change in user fees shall be subject to provision’s of a grantor’s rate regulation ordinance(s) which ordinance(s) and provisions by this reference shall be considered fully set forth herein.
(B) A grantee subject to provisions of this chapter may not increase or modify any rate, charge, or service which is not subject to grantor’s rate regulation ordinance(s) without first filing notice of such proposed increase, or modification with the grantor clerk at least 30 days in advance of the proposed effective date of such increase or modification. Such notice shall state the nature of the increase or modification and provide the reason such increase or modification is deemed necessary by the grantor.
(C) Notwithstanding the provisions of divisions (A) and (B) above, a grantee and the grantor recognize that cable television tier I services, as defined within a franchise agreement, shall provide information vital to the community through the use of dedicated channels providing governmental, educational, and public access programming. Therefore, a grantee subject to this chapter and franchise awarded hereunder shall not modify or repackage its cable television tier I programming services without the advance approval of the grantor or as otherwise provided within a franchise.
(D) Notwithstanding that certain rates and charges for a grantor’s services may be exempt from grantor regulation at the time of adoption of this chapter, the grantor herein expressly reserves the right to revise this chapter in the future to incorporate any additional rate or service regulatory rights that may result from future changes in federal or state law and/or FCC rules and regulations.
(E) Any cable television franchise awarded hereunder may provide a procedure by which a grantee may request a modification of cable television programming services within a tier I, or for an increase or modification of any rate charge or service not subject to provisions of a grantor’s cable television rate regulation ordinance. Such a procedure may provide that:
(1) The grantor may, by affirmative action by its legislative body, require a grantee to appear before it to show cause pursuant to criteria hereinafter set out as to why the grantor’s rates, charges, or services should be increased or modified;
(2) If the grantor should so act, the grantor clerk shall be required to give notice of said hearing to grantee not less than 30 days prior to the scheduled date for said hearing; and
(3) In the event the grantor shall determine that such a hearing should take place, then said hearing shall be conducted in the following manner:
(a) The grantor’s legislative body shall conduct a full and complete public hearing regarding continued applicability of deregulation of a grantee’s rates and charges; and
(b) At the show cause hearing provided herein, it shall be the grantor’s responsibility to determine whether or not a grantee has established reasonable rates or services for subscribers and if such proposed increase or modification of rates or services are reasonable or lawful. In making such determination, the grantor shall consider and give due weight to a grantee’s expenses, a reasonable grantee return on the cost of the property used in this service, depreciation, obsolescence, taxes, risks of the business, and the value of service to the customer. A copy of such decision will be served upon a grantee.
(F) If, after the hearing, the grantor finds existing rates to be unjust, unreasonable, or in violation of the law, a copy of such decision along with its conclusions and findings supporting its decision will be served upon a grantee.
(G) The cost of publication of notice of the public hearing shall be borne by a grantee.
(2011 Code, § 14.12.060)
(A) At the grantor’s sole option, within 90 days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of a franchise awarded hereunder, the grantor and the grantee shall meet publicly to review the performance, quality of service, and rates of a telecommunications system. The reports required in §§ 114.150 through 114.161 regarding user complaints, the records of performance tests, and the opinion survey report shall be utilized as the basis for review. In addition, any user may submit complaints during the review meetings, either orally or in writing, and these shall be considered.
(B) Within 30 days after the conclusion of system performance review meetings, the grantor shall issue findings with respect to the adequacy of system performance and quality of service. If inadequacies are found, the grantor shall direct a grantee to correct the inadequacies within a reasonable period of time.
(C) Failure of a grantee, after due notice, to correct the inadequacies shall be considered a material breach of a franchise awarded hereunder and the grantor may, at its sole discretion, exercise any remedy within the scope of this chapter considered by the grantor to be appropriate.
(2011 Code, § 14.12.070)
To provide for technological, economic, and regulatory changes in the state of the art of telecommunications, to facilitate renewal procedures, to promote the maximum degree of flexibility in a telecommunications system, and to achieve a continuing, advanced modern system, the grantor and a grantee shall comply with the following system and services review provisions.
(A) At the grantor’s sole option, the grantor and a grantee shall hold a performance and compliance system and services audit session on or about the third anniversary date of a franchise agreement or renewal. Subsequent performance and compliance audits shall be scheduled by the grantor each three years thereafter.
(B) Sixty days prior to the scheduled system audit, a grantee shall submit a report to the grantor indicating the following:
(1) All system services that are being provided on an operational basis, excluding tests and demonstrations, to other municipalities within the United States with populations above 50,000 that are not provided to the grantor; and
(2) A plan for provision of such services, or a justification indicating why such services are not feasible for the grantor’s franchise area.
(C) Topics for discussion and review at the system and services audit sessions shall include, but shall not be limited to, services provided, rate structure, free or discounted services, application of new technologies, system performance, programming, users’ complaints, rights of privacy, amendments to a franchise awarded hereunder, construction processes, developments in the law, and regulatory constraints.
(D) Either the grantor or a grantee may select additional topics for discussion at any review session.
(E) Not later than 60 days after the conclusion of each system and services audit, the grantor shall issue findings, including specifically a listing of any services not then being provided to the grantor, that are considered technically and economically feasible.
(2011 Code, § 14.12.080)
(A) Intent. It is the intent of the grantor to ensure that, wherever possible, access and community services required within a franchise agreement shall be managed in the best public interest so that such services will be free of censorship, open to all residents, and available for all forms of public expression, community information, and debate of public issues. Pursuant to these objectives, the grantor may delegate the responsibility for public benefit capability management to a nonprofit entity, which may include, but not be limited to, any of the following: a nonprofit corporation; a management commission or committee, appointed by the grantor, and representing a broad spectrum of the community; and/or an established nonprofit entity with special capability, such as a local or regional school system or community college.
(B) Functions. The entity designated to manage public benefit capability shall have the following functions:
(1) Responsibility for public benefit usage and management as may be required within a franchise;
(2) To assure that the public benefit access is made available to all residents of a franchise area on a nondiscriminatory, first-come, first-served basis;
(3) To assure that no censorship or control over public benefit system use is imposed, except as such control may relate to compliance with existing FCC rules as may regard the prohibition of material that is obscene, or contains commercial advertising, or conducts a lottery;
(4) To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the public benefit use system;
(5) To prepare, in conjunction with a grantee, such regular or special reports as may be required or desirable;
(6) To hire and supervise staff;
(7) To make all purchases of materials and equipment that may be required;
(8) To develop additional sources of funding, such as foundation or federal or state grants;
(9) To perform such other functions relevant to the public benefit use of the system as may be appropriate; and
(10) Establishment of budgets on an annual basis, and utilization of funds and resources received from the grantor or the public benefit usage entity designated in § 114.087.
(C) Public benefit usage rules. The management entity, in cooperation with a grantee, shall develop a set of rules for the use of the public benefit use of the system which shall be promptly forwarded to the grantor. The rules shall be prepared in cooperation with a grantee and confirmed by a contractual agreement between the access management entity and a grantee. The rules shall, at a minimum, provide for:
(1) Access on a first-come, first-served, nondiscriminatory basis for all residents of a franchise area;
(2) Prohibition of advertising for commercial or political purposes, as defined by the FCC;
(3) Prohibition of any presentation of lottery information or obscene or indecent material;
(4) Public inspection of the log of public benefit users, which shall be retained by a grantee for a period of two years;
(5) Procedures by which individual or groups who violate any rule may be prevented from further access to public benefit use of the system; and
(6) Free public benefit use of the system, facilities, and technical support as are provided for in the public benefit user rules for a franchise.
(D) Public benefit use reports. The management entity shall provide a report to the grantor, at least annually, indicating the type of public benefit services accomplished, the number of individuals or community groups that have utilized such system services, and the community benefit of such utilization.
(2011 Code, § 14.12.090)
FINANCIAL AND INSURANCE PROVISIONS
(A) Within 30 days after the granting of a franchise subject to provisions of this chapter, a grantee shall file with the grantor a bond(s) in the amount specified in a franchise agreement in favor of the grantor and any other person who may claim damages as a result of the breach of any duty by a grantee assured by such bond.
(B) Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by a grantee in the event said grantee shall default in the performance of its franchise obligation.
(C) In no event shall the amount of said bond be construed to limit the liability of a grantee for damages.
(D) The grantor, at it sole option, may waive this requirement or permit the consolidation of the bond with a security fund as specified in this section and § 114.106.
(2011 Code, § 14.16.010) Penalty, see § 114.999
(A) In addition to the bond set forth above, a grantee shall, at least 30 days prior to the commencement of operation, file with the grantor a performance bond in the amount specified in a franchise agreement in favor of the grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the telecommunications system operated under a franchise agreement, and including the payments required to be made to the grantor hereunder.
(B) Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by a grantee in the event said grantee shall default in the performance of its franchise obligation.
(C) In no event shall the amount of said bond be construed to limit the liability of a grantee for damages.
(2011 Code, § 14.16.020) Penalty, see § 114.999
(A) Within 30 days after the effective date of a franchise awarded hereunder, a grantee shall deposit into a bank account, established by the grantor, and maintain on deposit through the term of this franchise the sum specified in a franchise agreement, as security for the faithful performance by it of all the provisions of a franchise awarded hereunder, and compliance with all orders, permits, and directions of any agency of the grantor having jurisdiction over its acts or defaults under this chapter and the payment by a grantee of any claims, liens, and taxes due the grantor which arise by reason of the construction, operation, or maintenance of the system. The security fund may be assessed by the grantor for purposes including, but not limited to, the following:
(1) Failure of a grantee to pay the grantor sums due under the terms of a franchise awarded hereunder;
(2) Reimbursement of costs borne by the grantor to correct franchise violations not corrected by a grantee, after due notice; and/or
(3) Monetary remedies or penalties assessed against a grantee due to default or violation of franchise requirements.
(B) At the grantor’s sole option, some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.
(C) Within 30 days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to division (A) above, a grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.
(D) If a grantee fails to pay to the grantor any franchise fee or taxes due and unpaid, or fails to pay to the grantor, any damages, costs, or expenses which the grantor shall be compelled to pay by reason of any act or default of a grantee in connection with this franchise, or fails after 30 days’ notice of such failure by the grantor, to comply with any provision of a franchise awarded hereunder which the grantor reasonably determines can be remedied by an expenditure of the security, the grantor may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify a grantee of the amount and date thereof.
(E) The security fund deposited pursuant to this section shall become the property of the grantor in the event that a franchise awarded hereunder is revoked for cause by reason of the default of a grantee in accordance with the procedures of this section. A grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of a franchise awarded hereunder, provided that there is then no outstanding default on the part of a grantee.
(F) The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this contract or authorized by law, and no action, proceeding, or exercise of a right with respect to such security fund shall affect any other right the grantor may have.
(2011 Code, § 14.16.030) Penalty, see § 114.999
When requested by the grantor, a grantee shall provide adequate bonding for employees that enter users’ residences and/or perform fiduciary duties with respect to subscriber funds.
(2011 Code, § 14.16.040) Penalty, see § 114.999
(A) (1) A grantee shall, by acceptance of a franchise granted herein, indemnify, defend, and hold harmless the grantor, its officers, boards, communication agents, and employees from any and all claims, suits, judgments for damages in any way arising out of or through or alleged to arise out of or through: the act of the grantor in granting this franchise; and the acts or omissions of a grantee, its servants, employees, or agents.
(2) Both such indemnifications shall cover such claims arising in tort, contracts, violations of statutes, ordinances or regulations, or otherwise.
(B) In the event any such claims shall arise, the grantor shall tender the defense thereof to a grantee; provided, however, that the grantor in its sole discretion may participate in the defense of such claims at its expense.
(2011 Code, § 14.16.050)
(A) A grantee shall maintain throughout the term of a franchise insurance in amounts as set forth within a franchise or as follows.
(1) Worker’s compensation insurance. In such coverage as may be required by the worker’s compensation insurance and safety laws of the state and amendments thereto.
(2) Comprehensive general liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage shall be maintained at the sum(s) specified in a franchise agreement.
(3) Comprehensive automobile liability. Comprehensive automobile liability including, but not limited to, non-ownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in a franchise agreement.
(B) A grantee shall furnish the grantor with copies of such insurance policies and certificates of insurance.
(C) Such insurance policies provided herein shall name the grantor, it officers, boards, commissions, agents, and employees as additional insured and shall contain the following endorsement: “It is hereby understood and agreed that this insurance policy may not be canceled by the surety or the intention not to renew be stated by the surety until 30 days after receipt by the grantor by registered mail written notice of such intention to cancel or not renew.”
(D) The minimum amounts set forth in a franchise agreement for such insurance shall not be construed to limit the liability of a grantee to the grantor under a franchise issued hereunder to the amounts of such insurance.
(2011 Code, § 14.16.060) Penalty, see § 114.999
DESIGN AND CONSTRUCTION
A telecommunications system shall be constructed in accordance with the design requirements contained in a franchise agreement.
(2011 Code, § 14.20.010) Penalty, see § 114.999
(A) A grantee shall design and construct a system in such a manner as to have an initial capability to provide service and pass every residential and commercial unit, school, and public agency within the area of a franchise.
(B) Service shall be provided to users in accordance with the schedules and line extension policies specified in a franchise agreement.
(C) System construction and provision of service shall be nondiscriminatory, and shall not delay or defer service to any section of a franchise area on the grounds of economic preference.
(2011 Code, § 14.20.020) Penalty, see § 114.999
Where practical, a grantee shall provide cablecasting facilities in accordance with the requirements of a franchise agreement.
(2011 Code, § 14.20.030) Penalty, see § 114.999
(A) A grantee shall comply with the requirements of the system construction schedule contained in a franchise agreement.
(B) Service need not be provided where power and telephone utilities are not available.
(C) A grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, a grantee shall update this information on a monthly basis, showing specifically whether schedules are being met and the reasons for any delay.
(D) Failure to begin construction within one year after award of a franchise shall be grounds for franchise revocation, at the option of the grantor.
(2011 Code, § 14.20.040) Penalty, see § 114.999
(A) The grantor may, at its sole option, apply any or all of the following remedies in connection with delays in system construction:
(1) Reduction in the duration of a franchise on a month-for-month basis for each month of delay exceeding three months;
(2) Forfeiture of bonds and/or assessment of monetary damages up to the maximum limit specified in a franchise agreement, levied against a security fund for delays exceeding six months; and
(3) Termination of a franchise awarded hereunder for delays exceeding 12 months.
(2011 Code, § 14.20.050)
The undergrounding of a grantee’s distribution system shall be installed underground at a grantee’s cost where existing utilities are already underground. Previously installed aerial distribution systems shall be underground or relocated in concert, and on a cost-sharing basis, with other utilities, when such other utilities may convert from aerial to underground construction.
(2011 Code, § 14.20.060) Penalty, see § 114.999
(A) In cases of new construction or property development where utilities are to be placed underground, upon request by a grantee, the developer or property owner shall give a grantee reasonable notice of the particular date on which open trenching will be available for a grantee’s installation of conduit, pedestals, and/or vaults, and laterals to be provided at a grantee’s expense. A grantee shall also provide specifications as needed for trenching.
(B) Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if a grantee fails to install its conduit, pedestals, and/or vaults, and laterals within five working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five-day period, the cost of new trenching is to be borne by a grantee.
(2011 Code, § 14.20.070)
In cases of multiple-dwelling units serviced by aerial utilities, a grantee shall make every effort to minimize the number of individual aerial drop cables, giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit. The burden of proof shall be upon a grantee to demonstrate why undergrounding of drop cables is technically or economically unfeasible.
(2011 Code, § 14.20.080) Penalty, see § 114.999
(A) A grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property until the written approval of the grantor is obtained, which approval shall not be unreasonably withheld. However, no location of any pole or wire holding structure of a grantee shall be a vested interest and such poles or structures shall removed or modified by a grantee at its own expense whenever the grantor determines that the public convenience would be enhanced thereby.
(B) A grantee shall notify the grantor at least ten days prior to the intention of a grantee to commence any construction in any streets. The grantor shall cooperate with a grantee in granting any permits required, providing such grant and subsequent construction by a grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the grantor.
(C) All transmission lines, equipment, and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and, at all times, shall be kept and maintained in a safe, adequate, and substantial condition, and in good order and repair. A grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares, or other devices shall be used at such time and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by a grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.
(D) A grantee shall, for the entire term of a franchise, at its own expense, and in a manner approved by the grantor, restore to grantor standards and specifications any damage or disturbance caused to public or private property as a result of its operations or construction on its behalf.
(E) Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of a grantee’s facilities, no charge shall be made by a grantee against the grantor for restoration and repair, unless such acts amount to gross negligence by the grantor.
(F) A grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the grantor. Trimming of trees outside of public easements and on private property shall require written consent of the property owner.
(G) A grantee, at its expense, shall protect, support, temporarily disconnect, relocate, or remove any property of a grantee when, in the opinion of the grantor, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including, but not limited to, movement of buildings, redevelopment, or any general program under which the grantor shall undertake to cause any such properties to be located beneath the surface of the ground. A grantee shall in all cases have the privilege, subject to the corresponding obligation, to abandon any property of a grantee in place. Nothing hereunder shall be deemed a taking of the property of a grantee and a grantee shall be entitled to no surcharge by reason of anything hereunder.
(H) Upon failure of a grantee to commence, pursue, or complete any work required by law or by the provisions of a franchise awarded hereunder to be done in any street, within the time prescribed and to the satisfaction of the grantor, the grantor may, at its option, cause such work to be done and a grantee shall pay to the grantor the cost thereof in the itemized amounts reported by the grantor to a grantee within 30 days after receipt of such itemized report.
(I) A grantee shall make no paving cuts or curb cuts unless absolutely necessary, and then only after written permission has been given by the grantor.
(J) The grantor reserves the right to require conduit for underground distribution systems consistent with its normal procedure.
(2011 Code, § 14.20.090) Penalty, see § 114.999
(A) Construction standards.
(1) Compliance with safety codes. All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act, being 29 U.S.C. §§ 651 et sq., and any amendments thereto as well as all state and local codes where applicable.
(2) Compliance with electrical codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the Basic BOCA Electrical Code, as amended.
(3) Antenna and towers. Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association’s specifications.
(4) Compliance with aviation requirements. Antenna supporting structures (tower) shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations.
(5) Construction standards and requirements. All of a grantee’s distribution system and equipment, including, but not limited to, the antenna site, headend and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fiber optic cable, fixtures, and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the grantor may deem proper to make, or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
(6) Safety, nuisance requirements. A grantee shall at all times employ care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.
(B) Technical standards. A telecommunications system created or built as a direct result of the award of a franchise hereunder shall meet all technical and performance standards specified by law, FCC rules, or specifications contained in a franchise.
(C) Test and compliance procedure. If so required in a franchise awarded hereunder, a grantee shall submit, within 60 days after the effective date of a franchise award, a detailed test plan describing the methods and schedules for testing the system on an ongoing basis to determine compliance with the provisions of a franchise. Such tests shall be those necessary to measure compliance with existing federal law or FCC rules. The tests for basic subscriber television services shall be performed at intervals no greater than every 12 months, on a minimum of ten subscriber television receivers, located throughout the service area. At least six of these locations shall be at the far end of the distribution trunk cables. The tests shall be witnessed by representatives of the grantor, and written test reports shall be submitted to the grantor. If more than 10% of the locations tested fail to meet the performance standards, a grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated for at least ten different locations.
(D) Special tests. At any time after commencement of service to subscribers, the grantor may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific user’s terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The grantor shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to grantee or to the user.
(2011 Code, § 14.20.100) Penalty, see § 114.999
(A) Interconnection required. A grantee shall, to the best of its ability, attempt to accomplish an interconnect of any public benefit system capacity with other telecommunication systems in adjacent area, upon the directive of the grantor.
(B) Interconnection procedure. Upon receiving a directive of the grantor to explore the possibility of an interconnect, a grantee shall initiate negotiations with other systems. The cost of such an interconnect, if accomplished, shall be borne by both grantees in a proportion to the level of effort and expense expended by both, or all parties. In the case of regional or statewide interconnection, the same principle shall apply.
(C) Relief. A grantee may be granted reasonable extensions of time to interconnect or the grantor may, at the request of a grantee, withdraw its directive to seek an interconnect.
(D) Cooperation required. A grantee shall cooperate with any interconnection corporation, regional interconnection authority, or city, county, state, and federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of telecommunication systems beyond the boundaries of a franchise territory.
(E) Initial technical requirements to assure future interconnection capability.
(1) All telecommunications systems of similar type receiving a franchise to operate within a franchise territory shall make every effort to use the same frequency allocations for commonly provided signals so far as is technically and economically feasible.
(2) A grantee who provides public benefit services shall install and operate equipment that is compatible throughout the area so that services may be shared by various systems.
(2011 Code, § 14.20.110) Penalty, see § 114.999
SERVICE
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