When a cable operator violates a provision of this article, or acts so as to compromise the legal, financial, or technical integrity and/or stability of the cable system or the cable operator itself, in either case, to a degree that the interests of the subscribers are negatively affected, then a cable operator shall be considered in default of this article.
(A) Examples of a default shall include, but are not limited to: bankruptcy (except for a reorganization as long as the cable operator is in compliance with an approved plan or other court order), insolvency, failure to pay taxes or franchise fees, failure to receive written city approval for an assignment, or failure to substantially abide by the terms and conditions of the franchise agreement or this article, to include the failure to operate its cable system. Provided:
(1) It is not the city’s intention to subject a cable operator to penalties, fines, forfeitures, or revocation of a franchise for violations where the violation was a good faith error that resulted in no or minimal negative impact on the subscribers within the city, or where strict performance would result in practical difficulties and hardship to a cable operator which outweighs the benefit to be derived by the city and/or subscribers; and
(2) Events in the nature of force majeure or conditions which cannot be corrected because they are matters reasonably beyond the ability of the affected cable operator to anticipate and control shall not be considered a default. This provision includes, but is not limited to, severe or unusual weather conditions, fire, flood, or other acts of God, strikes, work delays caused by failure of utility providers to service, maintain or monitor their utility poles to which a cable operator’s cable system is attached, as well as unavailability of materials, and/or qualified labor to perform the work necessary; provided, however, such noncompliance shall only be excused for as long as the cable operator is reasonably pursuing compliance.
(B) In the event that a default occurs, the city shall provide written notice of the default to the affected cable operator. The notice of default shall specify the violation(s).
(C) The cable operator shall have 30 days from the receipt of the written notice to bring itself into compliance so that it is no longer in default of its franchise or this article, as the case may be; provided, however, if by the nature of default, the default cannot be cured within this 30-day period, the cable operator shall initiate reasonable steps to remedy the default and notify the city of the steps being taken and the projected date that they will be completed.
(D) If the cable operator fails to cure its default within the time period provided for above, the matter shall be set for public hearing before the City Council to be held within 75 days after the notice of default was mailed to the cable operator. Written notice of the time and place of the public hearing shall be sent to the cable operator at least 20 days prior to the date of the hearing.
(E) At the hearing, the cable operator shall have an opportunity to state its position on the matter, present evidence, and question witnesses. If the cable operator fails to attend the hearing where a continuance of the hearing has not been granted by the City Council, then the cable operator may be declared in default of the franchise agreement
(F) If the default has not been resolved by the time of or as a result of the hearing, the City Council may, after the public hearing, direct the cable operator to take corrective action within a specified period of time, or may declare the cable operator in default of the franchise agreement, and revoke or terminate the franchise. The City Council’s action shall be delivered to the cable operator in writing within 15 days of the City Council’s action.
(G) If the City Council directs corrective action to be taken and the cable operator does not rectify the default within the time specified, then the City Council may, without further notice, declare the cable operator to be in default and revoke or terminate the franchise.
(H) If the cable operator fails to comply with any determination by the City Council, which determination is not stayed or overturned by order of an appropriate court, then the city shall have any and all remedies available to it by law, provided the cable operator may continue to operate the cable system until all legal appeals procedures have been exhausted.
(Ord. 4245, passed 9-3-2019)