(a) Civil Penalties. In addition to any other remedies provided in this chapter, any Grantee violating or failing to comply with the provisions of this chapter, after written notice thereof as specified in this section, shall be subject to civil penalties for such violations as follows:
(1) After at least thirty (30) days written notice to the Grantee, for failure to complete new construction in accordance with the construction schedule established in a Franchise Agreement, unless the Grantor approves the delay, the penalty shall be up to five hundred dollars ($500.00) per day for each day, or part thereof, that such failure occurs or continues.
(2) After at least thirty (30) days written notice to the Grantee, for failure to complete any upgrade or modification to the Cable System in accordance with the time schedule established in a Franchise Agreement, unless the Grantor approved the delay, the penalty shall be up to two hundred dollars ($200.00) per day for each day, or part thereof, that such failure occurs or continues.
(3) After at least five (5) days written notice to Grantee, for failure to secure or comply with a condition of a City permit issued pursuant to Chapter 1020 of the Codified Ordinances regulating street openings and excavations, the penalty shall be one hundred dollars ($100.00) per day for each day, or part thereof, that such failure occurs or continues.
(4) After the expiration of three (3) business days from the date established for performance under Section 872.25, without further notice, for failure to provide data, documents, reports or any other information required under a Franchise Agreement to the Grantor, the penalty shall be fifty dollars ($50.00) per day for each day, or part thereof, that such failure occurs or continues.
(5) After at least ten (10) days written notice to Grantee, for any other failure to comply with this chapter or a Franchise Agreement for which a penalty is not otherwise specifically provided, the penalty shall be fifty dollars ($50.00) per day for each day, or part thereof, that such failure occurs or continues.
(b) Revocation. In addition to revocation of a Franchise in accordance with other provisions of this chapter, Grantor may revoke a Franchise and rescind all rights and privileges associated with the Franchise Agreement in the following circumstances, each of which represents a violation of this chapter and a material breach of the Franchise Agreement:
(1) If the Grantee fails to perform any of its material obligations under the Franchise Agreement or under any ordinances, documents or other terms and provisions entered into by and between the Grantor and the Grantee;
(2) If there is a pattern of noncompliance with the Grantor's consumer service standards;
(3) If the Grantee willfully and deliberately fails for more than twenty-four (24) hours to provide continuous and uninterrupted Cable Service for the entire Franchise area, not subject to force majeure as defined under Section 872.30 herein;
(4) If the Grantee practices any fraud or deceit upon the Grantor or any Subscriber; or
(5) If the Grantee becomes insolvent, or if there is an order for relief in favor of the Grantee in a bankruptcy proceeding.
Written notice of intent to consider revocation under this subsection shall be served on the Grantee at least thirty (30) days prior to the date of revocation. In the event that there is a conflict between the provisions of this subsection and the provisions for revocation of a Franchise contained in the Cable Act of 1994 as amended, the provisions of the latter will control.
(c) Notice of Violation. If the Grantor finds that the Grantee has failed to perform any obligation under this chapter, Chapter 874 or the Franchise Agreement or has failed to perform any obligation in a timely manner, the Grantor shall give written notice to the Grantee of such finding. When the Grantor gives written notice of intent to consider revocation of a Franchise, the written notice shall include a brief statement of the grounds therefore and shall set a date for hearing before the Strongsville Telecommunications Commission. In all other cases, the written notice shall include the following:
(1) A description in reasonable detail of the alleged violation;
(2) An order that the Grantee correct or remedy the alleged violation;
(3) The time within which the alleged violation must be corrected or remedied which shall not be less than the time provided for written notice of the particular violation set forth in subsection (a) hereof;
(4) The manner in which the alleged violation shall be corrected or remedied;
(5) Such terms and conditions which the Grantor may establish to correct or remedy the alleged violation; and
(6) The amount of any daily penalty to be imposed pursuant to the provisions of subsection (a) hereof or other provisions of this chapter.
Each written notice shall be served by personal delivery or by certified mail, return receipt requested.
(d) Modification of Time to Cure. At any time, the time(s) provided in this section for Grantee to remedy or correct any alleged violation may be shortened by the Grantor if the Grantor determines, in its judgment, that one or more conditions created by the alleged violation poses an immediate threat to public health, safety or welfare; and may be extended by the Grantor if the Grantor determines, in its judgment, that more time than established is required to remedy or correct the alleged violation.
(e) Administrative Review.
(1) A written notice of intent to consider revocation shall be heard by the Strongsville Telecommunications Commission (“Commission”) within sixty (60) days from the date of service of the notice upon a Grantee, unless such time is extended by agreement of the Grantor and Grantee. The Commission shall hear the Grantee and any persons interested in the revocation. Within ninety (90) days after the hearing, the Commission shall issue its written findings and recommendations to the Council. The Commission may recommend that the Franchise be revoked and the performance bond forfeited; or that the breach at issue is capable of being cured by the Grantee, and that the Grantee be directed to take appropriate remedial action within the time and in the manner and under the terms and conditions that the Commission determines are reasonable under the circumstances.
(2) A Grantee may file a request for review of any written notice of violation issued under this section with the Secretary of the Commission. To perfect a request for review, a Grantee shall file its request within the time period established in the notice for correction or remedy of the alleged violation. Such time period shall be calculated from the date of service of the written notice upon the Grantee. The request for review shall consist of a written statement signed by an authorized officer, employee or attorney of the Grantee, which shall briefly state the reasons why the Grantee believes the findings, orders and/or penalties in the written notice are inaccurate or unreasonable and shall be accompanied by a copy of the written notice. If a Grantee timely files a request for review, the Commission shall hear and decide such request.
(3) Hearings of the Commission shall be conducted in accordance with the provisions of this section and Chapter 870 and any rules and regulations adopted thereunder.
(4) A decision of the Commission under this section shall not be final until confirmed by a resolution or ordinance of Council. The Council, in its judgment, may conduct a further hearing and may reverse, amend or modify the findings of the Commission. The final decision of the Council shall be final, subject to appeal to a court of competent jurisdiction.
(f) The assessment of any monetary penalty shall not constitute a waiver by the Grantor of any other right or remedy it may have under the Franchise or applicable law including its right to recover from the Grantee any additional damages, losses, costs and expenses, including attorney's and/or consultant fees that are incurred by the Grantor by reason of a violation of this chapter or Chapter 874 or the breach of the Franchise Agreement.
(Ord. 1998-268. Passed 12-21-98.)