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(a) Unless approved by the County and to the extent consistent with federal law, a franchisee must not, in its cable service rates or charges, or in the availability of its cable services, or in any other respect, grant undue preferences or advantages to any subscriber or potential subscriber, or to any user or potential user, nor subject any of these persons to any undue prejudice or any disadvantage. Unless prohibited by applicable federal law, the County may require the franchisee to have a uniform rate structure for its cable services throughout the franchise area. A franchisee must not deny, delay, or otherwise burden service or discriminate against subscribers or users on the basis of age, race, religion, color, sex, sexual orientation, gender identity, handicap, national origin, or marital status, except for discounts for the elderly and handicapped, as defined in Chapter 27.
(b) A franchisee must not deny cable service to any potential subscriber because of the income of the residents of the area in which the subscriber resides.
(c) (1) Except as provided in paragraphs (2) and (3) of this subsection, a franchisee must not enter into an agreement with a programming service or broadcast station that provides for:
(A) the exclusive distribution or retransmission of programming by the franchisee within any area of the County; or
(B) a refusal by the programming service or broadcast station to deal with a competing multichannel provider in the County.
(2) The prohibition contained in paragraph (1) may not be construed to apply to a provision in an agreement that provides for bona-fide volume discounts that are either cost-based or which otherwise would be applied equally to both affiliated or unaffiliated customers of the programming service or broadcast station.
(3) This subsection does not apply to any agreement between a franchisee and a programming service or broadcast station entered into before July 21, 1992. It does apply to any subsequent amendments that extend the term of the agreement. Any subsequent renewal of a franchise by the County after that date must be conditioned on compliance with paragraph (1) with regard to all programming, including any agreement entered into on or before July 21, 1992.
(FY 1991 L.M.C., ch. 3, § 1; 1993 L.M.C., ch. 15, § 1; 2006 L.M.C., ch. 34, § 1; 2007 L.M.C., ch. 18, § 1; 2019 L.M.C., ch. 26, §1.)
Editor’s note—Section 8A-15 is quoted in Doe v. Montgomery County Board of Elections, 406 Md. 697, 962 A.2d 342 (2008) and cited in Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (2007).
2019 L.M.C., ch. 26, § 2, states: This Act is known as the “Montgomery County CROWN (Creating a Respectful and Open World for Natural Hair) Act.”
(a) A franchisee must protect the privacy of all subscribers under Section 631 of the Cable Act. A franchisee must not condition subscriber service on the subscriber's grant of permission to disclose information, which, cannot be disclosed without the subscriber's explicit consent under federal law.
(b) A person must not intercept or use any video, voice, or data signal transmissions over a cable system, unless the interception or use is authorized by the franchisee or other person having the lawful right to authorize the reception or use. A violation of this subsection is a Class A offense. (FY 1991 L.M.C., ch. 3, § 1.)
(a) A franchisee must use, with the owner's permission, existing poles, conduits or other facilities whenever possible. Copies of agreements for use of poles, conduits or other facilities must be filed with the County as required by the franchise agreement.
(b) All transmission lines, equipment and structures must be installed and located to cause minimum interference with the rights and reasonable convenience of property owners.
(c) Suitable safety devices and practices as required by local, County, state and federal laws, regulations, and permits must be used during construction, maintenance, and repair of a cable system.
(d) A franchisee must remove, replace, or modify at its own expense any of its facilities in a public right-of-way when the County requires it to do so, to allow the County to change, maintain, repair or improve a public thoroughfare.
(e) The franchisee must put the cable underground at its expense on streets and roads where both electrical and telephone utility wiring are underground, and must move the cable underground after initial installation when electrical and telephone utility wiring are moved underground. The franchisee must put the cable underground between a street or road and a subscriber's residence if both electrical and telephone utility wiring are underground. A franchisee may install aerial cable if either electric or telephone utility wiring is aerial, except where a property owner or resident requests underground installation and agrees to pay the additional cost over aerial installation.
(f) A franchisee must obtain any required permits before starting construction work on public and private property and must restore the public and private property to their former condition after construction is completed. The County, or private property owner may, after prior notice to the franchisee, repair any damage done by the franchisee at the franchisee's expense if restoration is not satisfactorily performed within a reasonable time.
(g) Subject to the supervision and direction of the County, a franchisee may trim trees within public rights-of-way at its own expense as necessary to protect its wires and facilities. A franchisee may trim trees on private property with the consent of the property owner.
(h) At the request of any person holding a valid building moving permit and upon sufficient notice, the franchisee must temporarily raise, lower or cut its wires as necessary to facilitate a move. The direct expense of these temporary changes, including standby time, must be paid by the permit holder. The franchisee may require payment in advance. (FY 1991 L.M.C., ch. 3, § 1.)
(a) Any cable system constructed in the County must meet or exceed the technical standards under applicable law. All television signals transmitted on a cable system must include any closed captioning information for the hearing impaired. Antennas, supporting structures, and outside plant used in the cable system must comply with the recommendations of the Electronics Industries Association and applicable federal and local regulations on tower structures and outside plant.
(b) All construction, installation and maintenance must comply with the National Electrical Safety Code, the National Electric Code, the Bell System Code of Pole Line Construction, all state and local regulations, and accepted industry practices.
(c) The franchisee must perform at its expense proof of performance tests designed to demonstrate compliance with the requirements of applicable law at the stages of construction specified in the franchise agreement. The franchisee must provide the proof of performance test results promptly to the County.
(d) The County may require periodic proof of performance tests to be performed at the expense of the franchisee after the completion of construction. The franchisee must provide the test results promptly to the County.
(e) The franchisee must advise the County when a proof of performance test is scheduled so that the County may have an observer present. (FY 1991 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 34, § 1.)
(a) The franchisee must post with the County, and maintain at all times during the term of the franchise, a cash security deposit in the amount specified in the franchise agreement. The County must hold the security deposit as security for:
(1) faithful performance of all applicable provisions of law and the franchise agreement;
(2) compliance with all orders, permits, and directions of the County; and
(3) payment by the franchisee of any claims, liens, or taxes due to the County because of the construction, operation or maintenance of the system.
(b) The County must place any security deposit in an interest bearing account such as those in which the County general funds are located. The interest will accrue to the benefit of the franchisee but may not be withdrawn. All interest is added to and becomes part of the original security deposit during the term of the franchise.
(c) The County may immediately withdraw an appropriate amount, including interest and penalties, from the security deposit if:
(1) after 10 days notice the franchisee fails to pay to the County any fees or taxes due and unpaid, liquidated damages, damages, or costs or expenses that the County is compelled to pay by reason of any act or default of the franchisee in connection with this franchise; or
(2) after 30 days notice to the franchisee, the franchisee fails to comply with any provision of the franchise that the County reasonably determines can be remedied by an expenditure of the security deposit.
The County must promptly notify the franchisee of the amount and date of any withdrawal.
(d) Within 30 days after the County gives notice that an amount has been withdrawn from the security deposit, the franchisee must deposit a sum of money equal to the amount withdrawn. If the franchisee does not deposit the required amount within 30 days, the entire security deposit remaining may be forfeited. In addition, that failure is a violation of this Chapter for which the County may revoke the franchise or take any other enforcement action.
(e) The security deposit is the property of the County if the franchise is revoked. The County must return the security deposit to the franchisee after the franchise is terminated if there is no outstanding default or unpaid amounts owed to the County by the franchisee.
(f) The rights reserved to the County with respect to the security deposit are in addition to all other rights of the County under this Chapter or other law. An action, proceeding, or exercise of a right with respect to the security deposit does not affect any other right the County may have.
(g) The requirements of this Section may be waived only with the Council’s approval. (FY 1991 L.M.C., ch. 3, § 1; 2002 L.M.C., ch. 31, § 1; 2005 L.M.C., ch. 14, § 2.)
Editor’s note—2006 L.M.C., ch. 34, § 3, repeals 2002 L.M.C., ch. 31, § 4, as amended by 2005 L.M.C., ch. 14, § 2.
2005 L.M.C., ch. 14, § 2, amends 2002 L.M.C., ch. 31, § 4, as follows: Expiration date. This act expires on December 31, 2008.
2002 L.M.C., ch. 31, §§ 2, 3 and 4, state:
Sec. 2. Service-level requirements for cable modem service. The County Executive must issue regulations under method (2) establishing minimum cable modem service levels that a franchisee must provide. The regulations supersede any less-stringent requirements in a franchise or subscriber agreement.
Sec. 3. Transition.
(a) This Act applies to each current or future franchise, franchisee, subscriber, or other person subject to the requirements of the County Cable Communications Act, as amended by this and any future Act, and supersedes any contrary regulation, franchise, franchise agreement, subscriber agreement, or other agreement. The complaint adjudication provisions in Chapter 8A of the Code, as amended by this Act, apply to any complaint pending on, or filed on or after, the date this Act takes effect [March 6, 2003]. Section 8A-31A(i) applies to any subscriber agreement modified or entered into after this Act becomes law [December 5, 2002].
(b) The County Executive must designate the initial term of 2 members of the Cable Compliance Commission as 2 years. Any later term of these 2 members, and the terms of all other members, mut be 3 years.
Sec. 4. Expiration date. This Act expires on December 31, 2005.
(a) If a franchisee violates any provision of the law or its franchise agreement, the County may take one or more of the following actions:
(1) impose liquidated damages in the amount, whether per day, incident, or other measure of violation, as provided in the franchise agreement. Payment of liquidated damages by the franchisee will not relieve the franchisee of its obligation to meet the franchise requirements;
(2) require the franchisee to pay its subscribers or classes of subscribers in an amount and on a basis the County determines is necessary to cure the breach or default, or equitably compensate for the violation; or
(3) revoke the franchise under this Chapter.
(b) In determining which remedy or remedies are appropriate under subsection (a), the County must consider the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and any other matters the County determines are appropriate.
(c) In addition to or instead of these remedies, the County may seek legal or equitable relief from any court of competent jurisdiction.
(d) Before initiating a remedy under this section other than revocation of the franchise, the County must give the franchisee written notice of the violations claimed and at least 10 working days to correct the violations. (FY 1991 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 34, § 1.)
(a) Except for limited franchises, the County must hold a minimum of 3 performance evaluation public hearings during the term of each franchise. The County Executive may determine the times for the hearings and the issues that the franchisee must address in the hearings.
(b) The County may hold performance evaluation public hearings for limited franchises as determined by the County Executive. (FY 1991 L.M.C., ch. 3, § 1.)
(a) If a franchisee initiates a formal franchise renewal process under Section 626(a)--(g) of the Cable Act, the franchisee must notify the County, and each participating municipality, at least 30 months and no more than 36 months before the franchise expiration date. When the County receives a notice from the franchisee, or at any time at the County's own initiative, the County must take the following actions:
(1) The County must review and evaluate the future cable-related community needs and interests and the franchisee's past performance. The review and evaluation must include opportunity for public comment.
(2) On completion of the review and evaluation, the County must notify the franchisee that it may file a renewal application. The notice must specify the information to be included in the renewal application and the deadline for filing the application. The filing deadline must not be earlier than 30 days after the date of the notice. If the franchisee does not submit a renewal application by the specified date, the franchise may not be renewed under this subsection.
(3) The County must hold one or more public hearings on the renewal application when the application is received or provide some other procedure for public comment on the application.
(4) After the public hearing or comment period, the County Executive must recommend to the Council that it either:
(A) renew the franchise, subject to the negotiation of a franchise agreement satisfactory to the County and the franchisee; or
(B) issue a preliminary decision that the franchise should not be renewed.
(5) The Council's action under paragraph (a)(4) must be taken within 4 months of the date of the renewal application notice to the franchisee under paragraph (a)(2).
(b) In considering a renewal application, the County must consider whether:
(1) the cable operator has substantially complied with the material terms of the existing franchise and with applicable law;
(2) the quality of the cable operator's service, including signal quality, response to consumer complaints, and billing practices has been reasonable in light of community needs (but without regard to the mix, quality, or level of cable services or other services provided over the system);
(3) the cable operator has the financial, legal, and technical ability to provide the services, facilities, and equipment in its proposal; and
(4) the cable operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting the needs and interests.
(c) If a preliminary decision is made that a franchise should not be renewed, at the request of the franchisee or on its own initiative, the County must commence an administrative proceeding under Section 626(c) of the Cable Act. A hearing must be held under Section 2A-8 of this Code. The burden of proof is governed by the Cable Act. The hearing officer must issue a recommended decision consistent with the Cable Act. Parties to the hearing and the public must have 30 days after the recommended decision is issued to comment. The County Executive must recommend that the Council grant of deny an application within 30 calendar days after the deadline for receipt of comments.
(d) The Council must hold a public hearing on a renewal application. After the public hearing, the Council must consider all of the evidence, either grant or deny the renewal application by resolution, and give the reasons for its determination in the resolution.
(e) The Council must hold a public hearing on any negotiated franchise agreement prior to final Council action on the franchise. This may be done in conjunction with the public hearing held under subsection (d).
(f) Notwithstanding subsections (a) through (c) in this section, a franchisee may submit a proposal for renewal of a franchise under 626(h) of the Cable Act. The County must hold one or more public hearing or provide some other procedure for public comment on the proposal. After the public hearing or comment period, the County Executive must recommend that the Council grant or deny the franchise renewal and the terms and conditions of any recommended renewal.
(g) The renewal of a franchise is not effective until the franchisee has paid the renewal fee. The County must notify the franchisee of the amount of the renewal fee and how the fee is calculated when the County approves the renewed franchise agreement. The renewal fee must not exceed the County's costs of the renewal process, less the renewal filing fee.
(h) If the County denies the renewal of a franchise, and the franchisee does not have other authority to maintain and operate its facilities in the County’s public rights-of-way, the County may, on the recommendation of the County Executive and with the approval of the Council, acquire ownership of the cable system or transfer ownership of the system to another person, subject to applicable law. Any acquisition or transfer under this subsection must be at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself, subject to applicable law.
(i) If the County does not renew a franchise and the franchisee does not have other authority to maintain and operate its facilities in the County’s public rights-of-way, and the County does not buy the cable system, the County may require the former franchisee to remove its facilities and equipment, subject to applicable law. If the former franchisee fails to do so within a reasonable period of time, the County may remove the facilities and equipment at the former franchisee's or the surety's expense or at the expense of both, subject to applicable law. (FY 1991 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 34, § 1.)
(a) A transfer of a franchise, or a transfer of an interest in a franchisee that results in a change in ownership interest of a franchise of 5 percent or more, must not occur without prior approval by the County. However, a transfer of an interest to a person who already holds an ownership interest of 25 percent or more does not require prior County approval if transfer of a franchise does not occur. A transfer of a franchise will not be approved by the County when the transferor has held the franchise less than 3 years unless the County finds that the transfer is necessary and in the best interests of the County and its residents.
(b) An application to transfer a franchise must meet the requirements of Section 8A-8(b) and provide complete information on the proposed transaction, including the legal, character, financial, technical, and other pertinent qualifications of the transferee, and on the potential impact of the transfer on subscriber services or rates. The proposed transferee must provide all information required in Section 8A-8(d)(1) through (3), (10), and (12). The information required in Section 8A-8(d)(4) through (9) must also be provided if the proposed transferee expects material changes to occur in those areas as a result of the transfer.
(c) An application for transfer of an interest in a franchisee must describe the proposed transaction in detail and identify the interest to be transferred, the transferor, and transferee. If the proposed transferee is not a current equity owner of the franchisee, the application must include the information required by Section 8A-8(d)(1) and (2).
(d) An application for a transfer must provide all documents and information related to the transaction and to the financial position of the cable system before and after the proposed transaction.
(e) A public hearing must be held on an application for transfer of an interest in a franchisee of 25 percent or more.
(f) Before approving transfer of a franchise, the County must consider the legal, financial, technical and character qualifications of the transferee to operate the system, and whether operation by the proposed franchisee will adversely affect the cable services to subscribers or otherwise be contrary to the public interest. Before approving a transfer of an interest in a franchisee, the County must consider whether the transferee's interest will have any effect on the franchisee's operation of the system, the franchisee's qualifications, or the public interest.
(g) The Council must take final action on an application for transfer of a franchise after receiving recommendation from the County Executive. The County Executive may take final action on an application for transfer of an interest.
(h) Approval by the County of a transfer of a franchise does not constitute a waiver or release of any of the rights of the County under this Chapter or the franchise agreement, arising before or after the date of the transfer. A transfer does not waive or release any non-performance that occurred before the transfer. All previous non-performance becomes the responsibility of the new franchisee unless the County otherwise agrees.
(i) The County may impose a grant fee to cover its costs in excess of the filing fee in considering an application for transfer of a franchise, except for the transfer of any franchise granted before January 1, 1988.
(j) Any entity guaranteeing the performance of a franchisee may apply to the County for release for release of the guarantee if:
(1) The franchisee has, for 5 consecutive years, complied with the franchise agreement and this Chapter; and
(2) A guarantor which controls the franchisee promises to not interfere with the franchisee’s performance of its obligations under the franchise agreement and this Chapter. (FY 1991 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 34, § 1; 2010 L.M.C., ch. 49, § 1.)
(a) A franchise may be revoked by the County on the recommendation of the County Executive and with the approval of the Council, for failure to construct, operate, or maintain the cable system as required by this Chapter or the franchise agreement, or for some other material breach of this Chapter or the franchise agreement. If the County has issued a franchise specifically conditioned upon the completion of construction or other specific obligations by a specified date under Section 8A-9(c), failure of the franchisee to complete construction or comply with other specific obligations as required will result in the automatic forfeiture of the franchise without further action by the County. However, the County, at its discretion and for good cause shown by the franchisee, may grant an extension of time. The County must give a franchisee written notice that it is in material breach of this Chapter or the franchise agreement. If the franchisee does not correct the breach within 30 days of the notice, or corrective action is not being actively and expeditiously pursued, the County may give written notice to the franchisee of its intent to revoke the franchise. The County must give the franchisee written notice of the basis for a revocation, stating its reasons. An administrative hearing must be held under the County's Administrative Procedures Act before the County may revoke a franchise. The hearing procedures may be modified by the County Executive where appropriate.
(b) The presiding officer must issue a recommended decision after the administrative hearing. The County Executive may provide for the filing of written comments in response to the recommended decision. After the comment period, the County Executive must submit written recommendations to the Council.
(c) The Council must hold a public hearing, and then determine by written resolution whether or not to revoke the franchise based on the recommended decision, the recommendations of the County Executive, information presented at the public hearing, and other evidence in the record. The resolution must include reasons for the Council's decision.
(d) If the County revokes a franchise, or if for any other reason a franchisee abandons, terminates, or fails to operate or maintain service to its subscribers, and the franchisee does not have other authority to maintain and operate its facilities in the County’s public rights-of-way, the County may, subject to applicable law:
(1) require the former franchisee to remove its facilities and equipment at the franchisee's or surety's expense, or at the expense of both, after determining that the cable system cannot be economically maintained and operated;
(2) acquire ownership of the cable system at an equitable price on the recommendation of the County Executive and with the approval of the Council;
(3) after a public hearing, sell, assign, or transfer all or part of the assets of a cable system abandoned by a franchisee for the best price offer obtainable. However, the legal, character, financial, technical, and other qualifications of the purchaser must meet County approval. The County must pay any consideration received in excess of the County's costs, and after other creditors and subscriber claims have been satisfied, to the original franchisee. (FY 1991 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 34, § 1.)
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