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113.01 Definitions | 113.29 Tenant’s Rights |
113.02 Intent | 113.30 Right of Individuals |
113.03 Franchise Territory | 113.31 Continuity of Service |
113.04 Police Power | 113.32 Identification of Employees |
113.05 Grant of Franchise | 113.33 Records |
113.06 Franchise Acceptance | 113.34 Regulatory Authority |
113.07 Transfer of Ownership or Control | 113.35 Regulatory Responsibility |
113.08 Franchise Renewal | 113.36 Public Usage of the System |
113.09 Franchise Fee | 113.37 Rates |
113.10 Revocation | 113.38 Performance Review |
113.11 Procedures on Termination | 113.39 System Review |
113.12 Receivership, Condemnation and Foreclosure | 113.40 Annual Reports |
113.13 Franchise Processing Costs | 113.41 System Survey Reports |
113.14 Authority for Use of Streets | 113.42 Complaint File and Reports |
113.15 Conditions on Use of Streets | 113.43 Other Reports and Inspections |
113.16 Erection of Poles | 113.44 Remedies for Franchise Violations |
113.17 Undergrounding | 113.45 Procedure for Remedying Franchise Violations |
113.18 Relocation | 113.46 Excuse of Nonperformance |
113.19 Movement of Buildings | 113.47 Construction Bond |
113.20 System Design and Construction | 113.48 Performance Bond |
113.21 Construction Standards | 113.49 Work Performed by Others |
113.22 Technical Standards | 113.50 Grantee Insurance |
113.23 Services | 113.51 Indemnity |
113.24 Consumer Service Standards | 113.52 Alternative Remedies |
113.25 Proof of Compliance | 113.53 Non-enforcement |
113.26 Complaint Procedures | 113.54 Compliance with Law |
113.27 Subscriber Notice | 113.55 Unauthorized Reception, Use or Sale of Services |
113.28 Quality of Service | 113.56 Waiver or Exemption |
The following words shall have the meaning set forth in this section unless the context clearly requires otherwise:
1.
“Act” or “Cable Act” means the Cable Communications Policy Act of 1984 (47 USC 521 et seq.) as amended by the Cable Television Consumer Protection and Competition Act of 1992.
2.
“Basic cable service” means any service tier which includes, at a minimum, the transmission of local television broadcast signals, and any other television signals other than superstations.
3.
“Basic cable equipment” means the equipment used by subscribers to receive the basic service tier, including, but not limited to, converter boxes, remote controls, connections for additional television sets and cable home wiring.
4.
“Broadcast services” means a broad category of programming which is received from broadcast television, low-power television, and radio stations and is capable of being received in the City.
5.
“Cable communication system” or “system,” also referred to as “cable television system,” “cable system,” “CATV system,” or “community antenna TV system” means 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 programming and which is provided to multiple subscribers within a community, but such term does not include:
A.
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
B.
A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility uses any public right-of-way;
C.
A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
D.
Any facilities of any electric utility used solely for operating its electric utility system.
6.
“Cablecast signal” means a nonbroadcast signal that originates within the facilities of the cable communications system.
7.
“Cable service” means the total of the following:
A.
The one-way transmission to subscribers of video programming or other programming services; and
B.
Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
8.
“Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the Federal Communications Commission.
9.
“Commence construction” means the time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering (including strand mapping) and after all necessary permits and authorizations have been obtained.
10.
“Commence operation” means that time and date when operation of the cable communications system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full services to a dwelling unit located within the franchise area.
11.
“Commercial use channel” means the channel capacity designated for commercial use as defined and required by Federal law.
12.
“Completion of construction” means that point in time when all distribution facilities specified in the franchise agreement have been installed by the Grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, as well as the provision, in an operational state, or any facilities required by the franchise agreement.
13.
“Control” or “controlling interest” means actual working control or ownership of a Mount Vernon cable system in whatever manner exercised. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or entity (except underwriters during the period in which they are offering securities to the public) of fifty percent (50%) or more of a Mount Vernon cable system or the franchise under which the system is operated. A change in the control or controlling interest of an entity which has control or a controlling interest in a Grantee shall constitute a change in the control or controlling interest of the Mount Vernon cable system under the same criteria. Control or controlling interest as used herein may be held simultaneously by more than one person or entity.
14.
“Converter” means an electronic device which converts signal carriers from one form to another.
15.
“Developed parcel” means any area of the City where there are at least thirty (30) occupied homes per mile to be served by either aerial cable plants or by cable underground plants as measured from the closest cable television distribution facility.
16.
“Dwelling unit” means any individual or multiple residential place of occupancy.
17.
“FCC” means the Federal Communications Commission and any legally appointed or elected successor.
18.
“Franchise” means the right granted through a franchise agreement between the Grantor and a person by which the Grantor authorizes such person to erect, construct, reconstruct, operate, dismantle, test, use and maintain a system in the City.
19.
“Franchise agreement” means a contractual agreement entered into between the Grantor and any Grantee hereunder which is enforceable by Grantor and said Grantee and which sets forth rights and obligations between Grantor and said Grantee in connection with the franchise.
20.
“Franchise fee” means any assessment imposed hereunder by the Grantor on a Grantee solely because of its status as a Grantee. The term “franchise fee” does not include:
A.
Any tax, fee, or assessment of general applicability (including any such tax for or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee or assessment which is unduly discriminatory against Grantee);
B.
Capital costs which are required by the franchise to be incurred by Grantee for educational or governmental access facilities;
C.
Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, consulting or legal costs, indemnification, penalties or liquidated damages; or
D.
Any fee imposed under Title 17, United States Code.
21.
“Grantee” or “applicant” means any person granted a franchise hereunder, its agents, employees, or subsidiaries.
22.
“Grantor” means the City.
23.
“Gross subscriber receipts” as the term is used in calculating franchise fees, means the revenues actually received by, rather than merely billed by, the Grantee from its cable television subscribers within the City after deducting the following:
A.
Any fees or assessments levied on subscribers or users of the system which are collected by the Grantee for payment to a governmental entity;
B.
Franchise fees paid by the Grantee to the City;
C.
State or local sales or property taxes imposed on the Grantee and paid to a governmental entity; and
D.
Federal copyright fees paid by the Grantee to the Copyright Tribunal in Washington, D.C.
24.
“Initial service area” means the area of the City which will receive service initially, as set forth in the franchise agreement.
25.
“Installation” means the connection of the system from feeder cable to subscribers, terminals, and the initial provision of service.
26.
“Leased access” means the use of the system by any business enterprise or other entity whether profit, nonprofit or governmental to render services to the citizens of the City, and includes, without limitation, all use pursuant to Section 532 of the Act.
27.
“Local origination channel” means any channel where the Grantee or its designated agent is the primary programmer, and provides locally produced video programs to subscribers.
28.
“Normal business hours,” as applied to the Grantee, means those hours during which similar businesses in the City are open to serve customers. In all cases, normal business hours must include some evening hours at least one night per week, and/or some weekend hours.
29.
“Normal operating conditions” means those service conditions which are within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
30.
“Public/Education/Government Access Facilities” or “PEG Access Facilities” means the total of the following:
A.
Channel capacity designated for public, educational or governmental use; and
B.
Facilities and equipment for the use of such channel capacity.
31.
“Resident” means any person residing in the City as otherwise defined by applicable law.
32.
“School” means any public or private elementary school, secondary school, junior college, college or university which conducts classes or provides instructional services and which has been granted a certificate of recognition by the State of Iowa.
33.
“Service area” or “franchise area” means the entire geographic area within the City designated in a franchise agreement to receive cable service.
34.
“Service interruption” means the loss of picture or sound on one or more cable channels.
35.
“Street” means the surface of and the space above and below any public street, road, highway, freeway, easement, lane, path, alley, court, sidewalk, parkway, driveway or other public way now or hereafter existing as such within the City.
36.
“Subscriber” means any person who legally receives any one or more of the services provided by the system.
The City finds that the development of cable communications systems has the potential of great benefit and impact upon the residents of the City. Because of the complex and rapidly changing technology associated with cable television, the City finds that the public health, safety and general welfare can best be served by establishing certain regulatory powers in the City as this chapter shall designate. It is the intent of this chapter to provide for the means to attain the best possible communication and developmental results in the public interest and for such public purpose, in these matters. Any franchise granted pursuant to this chapter shall be deemed to include these findings as an integral part thereof.
A franchise granted under this chapter is for the territorial limits of the City as they may exist now and in the future.
1.
Grantee shall offer service to all residents and public buildings within the franchise territory without regard to the race, religion, income, national origin, disability status, age, or gender of the subscriber, subject to the following: Whenever the Grantee receives a request for service from at least ten (10) single family residences (connections) within one thousand five hundred (1500) feet of its distribution cable, it shall extend the CATV system to such subscribers at no cost to the subscribers other than the usual connection and service fees for all subscribers, provided that such CATV system extension is technically and physically feasible. Measurement of the general density standard for service to any area shall be from the closest existing point of the Grantee’s CATV system. No person in the Grantee’s service area shall be arbitrarily refused service. However, in unusual circumstances or service to subscribers of a density of less than ten (10) single family residences per one thousand five hundred (1500) feet of the distribution cable, in order that the existing subscribers shall not be unfairly burdened, service may be made available on the basis of a capital contribution by the prospective subscriber to the Grantee, including reimbursement for the Grantee’s cost of materials, labor, and easements.
2.
Grantee shall offer service at equal rates, and on an equal basis with regards to deposits and service packages, to residential subscribers. Grantee may, however, discontinue or refuse service to subscribers and potential subscribers who have not paid applicable charges. Further, the Grantee may offer special services or rates to senior citizens, or services to commercial subscribers at rates different from those charged residential subscribers, which shall include, but not be limited to, charges for installation on a time and material basis. The Grantee may also enter into separate contracts with multiple dwelling unit buildings and may charge discounted rates for services based upon single point billing or other contractual considerations. This section does not preclude the Grantee from offering promotional rates for service introductions or temporary promotional discounts.
3.
Grantee shall provide a drop and basic service for one outlet, at no charge, to all current and future public buildings, including, but not limited to, City Hall, fire stations, public libraries (Cole Library of Cornell College), and public schools that are presently located in the existing cable TV service area. Any new public buildings, schools, city halls, fire stations, public libraries (including Cornell College) must be located within 500 feet of the CATV system to receive basic service for one outlet at no charge.
1.
Application. All applicants for a franchise under this chapter shall prepare and file a written application with the Grantor in such form as the Grantor shall designate.
2.
Review of Application. Upon receipt of an application under this chapter, the Grantor shall review the same and make the application available for public inspection at such places as the Grantor shall designate. A decision shall be made on the application by the Grantor after evaluation thereof. The Grantor may grant one (1) or more franchises, or may decline to grant any franchise.
3.
Franchise Required. Subject to Federal and State law, no cable system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise granted in accordance with the provisions of this chapter.
4.
Franchise Nonexclusive. Any franchise granted under this chapter shall be revocable and nonexclusive.
5.
Franchise Requirements. Grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and technology in the cable industry.
6.
Grant. In the event the Grantor shall grant to a Grantee or renew a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a cable system within the franchise area, said franchise shall constitute both a right and an obligation to provide the service of a cable system as required by this chapter and the terms of the franchise agreement.
7.
Conflicts with Federal or State Laws. Any franchise granted under this chapter shall be consistent with Federal laws and regulations and State general laws and regulations. In the event of a conflict between the terms and conditions of the franchise agreement and the terms and conditions of Federal or State law under which Grantor can grant a franchise, except where the application of such Federal or State law would impose inconsistent or additional material obligations or duties upon Grantee, such general law or requirements shall control.
8.
Ordinance Revisions. Any franchise granted under this chapter is hereby made subject to any revisions of this chapter or the general ordinances of the City, provided that such revisions do not materially alter or impair the obligations of Grantee set forth in any franchise agreement.
9.
Term. The term of any new or renewal franchise granted under this chapter shall be established in the franchise agreement, provided that in no event shall any franchise granted under this chapter exceed the term of fifteen (15) years.
10.
Other Licenses or Permits. A franchise granted under this chapter shall not take the place of any other license or permit legally required of a Grantee.
1.
To accept a franchise granted under this chapter, a Grantee must file any required bonds, funds and proof of insurance, as well as written notice of acceptance with the Clerk within 45 days of the effective date of the franchise agreement. Such written notice shall include a certification that the Grantee:
A.
Will comply with this chapter, any franchise agreements made pursuant to this chapter, and all applicable City, County, State and Federal regulations in regard to the construction, operation and maintenance of a cable system;
B.
Accepts the franchise relying on its own investigation and understanding of the power and authority of the Grantor to grant the franchise and the terms and conditions thereof;
C.
Acknowledges that it has not been induced to enter into the franchise by any understanding or promise or by other statement, whether written or verbal, by or on behalf of the Grantor or by any other third person concerning any term or condition of the franchise or chapter not expressed herein;
D.
Shall have no recourse whatsoever against the Grantor for any loss, cost, expense or damage arising out of any provision or requirement of a franchise or the enforcement thereof, or for the failure of the Grantor to have authority to grant any or all parts of the franchise;
E.
Agrees that, in the event of any conflict between the chapter and the franchise agreement, the terms of the franchise agreement shall prevail.
F.
Will not at any time claim in any proceeding involving the Grantor that any condition or term of the franchise or chapter is unreasonable, arbitrary or void, or that the Grantor had no power or authority to make any such term or condition, but shall accept the validity of the terms and conditions of the franchise and this chapter in their entirety, except as provided by local, State, Federal law or FCC rules and regulations.
2.
A Grantee of a franchise granted or transferred under this chapter may, at the time of acceptance of the franchise, provide an initial payment to the Grantor in the amount of the Grantor’s cost for printing and publication cost incurred in granting the franchise.
1.
Transfer of Franchise. Any franchise granted under this chapter shall be a privilege to be held for the benefit of the public. Any franchise so granted 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 written consent of the Grantor, and then only under such reasonable conditions as the Grantor may establish. Such consent as required by the Grantor shall be given or denied no later than one hundred twenty (120) days following any request, and shall not be unreasonably withheld. Prior consent shall not be required when transferring the franchise between wholly owned subsidiaries of the same entity.
2.
Ownership or Control. The Grantee shall promptly notify in writing the Grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the Grantee. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of fifty percent (50%) or more of the beneficial ownership interest of the Grantee. Every change, transfer, or acquisition of control of the Grantee shall make the franchise subject to cancellation unless and until the Grantor shall have consented in writing thereto, which consent shall be given or denied no later than one hundred and twenty (120) days following any request, and shall not be unreasonably withheld. 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 the Grantee shall assist the Grantor in any such inquiry. In seeking the Grantee’s consent to any change in ownership or control, the Grantee shall have the responsibility:
A.
To show to the satisfaction of the Grantor whether the proposed purchaser, transferee, or assignee (the “proposed transferee”), which in the case of a corporation shall include all directors and all persons having a legal or equitable interest in fifty percent (50%) or more of the voting stock:
(1) 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;
(2) 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; or
(3) Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system.
B.
To establish, to the satisfaction of the Grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the Grantee was required to submit in its franchise application, and such other data as the Grantor may request, where the same shall be audited, certified and qualified by a certified public accountant.
C.
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 the franchise under the existing franchise terms.
3.
Any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the Grantor that the financial institution, or its designee, as approved in writing by the Grantor, shall take control and operate the cable 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 (1) year unless extended by the Grantor in its discretion, but during said period of time it shall have the right to petition the Grantor to transfer the franchise to another Grantee. Except insofar as the enforceability of this subsection may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and further subject to applicable Federal, State or local law, if the Grantor finds that such transfer after considering the legal, financial, character, technical and other public interest qualities of the proposed transferee is satisfactory, the Grantor shall transfer and assign the right and obligations of such franchise as in the public interest. The consent of the Grantor to such transfer shall be given or denied no less than one hundred and twenty (120) days after any request, and shall not be unreasonably withheld.
4.
The consent or approval of the Grantor to any transfer by the 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 subject to the terms and conditions of any franchise.
5.
In the absence of extraordinary circumstances, the Grantor shall not approve any transfer or assignment of the franchise prior to completion of initial construction of the cable system.
6.
In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory of the franchise agreement.
7.
The Grantor may approve the transfer, deny the transfer with cause, or conditionally approve the transfer, provided that the Grantor shall not unreasonably refuse to approve the transfer or condition the transfer upon unreasonable conditions. The conditions the Grantor may attach to the transfer approval may include, but are not limited to: reimbursement for reasonable and necessary expenses incurred in evaluating the transfer request; remedy of any existing or historical violations of City ordinances or the franchise agreement; payment of all fees and penalties owed by the Grantee at the time of transfer approval; and a guarantee by the prospective transferee to abide by any and all ordinances, agreements and conditions placed upon the franchise and system by the Grantor and existing Grantee, unless mutually removed by the Grantor and Grantee.
8.
When the Grantee approves a transfer under this section, the new Grantee shall indicate acceptance of the franchise as specified in Section 113.06, including the filing of all necessary bonds, funds, proofs of insurance and certifications.
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