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(A) Any franchise granted under this chapter shall be nonexclusive.
(B) A franchise governed under this chapter shall be granted by a separate ordinance following a competitive bidding procedure; except in the case of a renewal as outlined in § 111.04. A public notice shall be published and official proposal forms shall be provided to all interested parties. Specific conditions, requirements, and desires of the city pertaining to a system shall be outlined in addition to those contained in this chapter. Any proposal submitted on the official Request for Proposal form which is accepted by ordinance of Council is subject to enforcement under this chapter and § 111.99 penalty shall apply. This includes items which are freely offered by the grantee and which may have formed the basis for selection over other interested bidders, even though the items were not specifically requested by the city in this chapter or in the Request for Proposal.
(C) This chapter is intended to be substantially identical to legislation, letters of agreement, general rules and regulations, or other such formal documents adopted by the Board of Monroe Township Trustees, Miami County. It is expressly contemplated that any franchise granted by separate ordinance under the authority of this chapter will be to the firm which best meets both the requirements of this chapter and of any similar requirements adopted by the Board of Monroe Township Trustees, Miami County.
(D) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein.
(E) Any privilege claimed under any such franchise by the grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.
(F) Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of Council expressed by ordinance, and then only under such conditions as may be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the City Manager within 30 days after any such transfer or assignment. The consent of Council may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with all provisions of this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation as a whole, to secure an indebtedness.
(G) Time shall be of the essence in any such franchise granted hereunder. The grantee shall not be relieved of his or her obligation to comply promptly with any of the provisions of this chapter or by any failure of the city to enforce prompt compliance.
(H) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the city shall be subject to transfer by the city to any other officer, employee, department, or board of the city.
(I) The grantee shall have no recourse whatsoever against the city for any loss, cost, expense, or damage arising out of any provision or requirement of this chapter or of any franchise issued hereunder or because of its enforcement.
(J) The grantee shall be subject to all requirements of city ordinances, rules, regulations, and specifications heretofore or hereafter enacted or established.
(K) Any such franchise granted shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the city or utility company, or of any obligation involved in maintaining poles in streets.
(L) Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation, or maintenance of any system in the city; and the acceptance of any franchise hereunder shall operate, as between grantee and the city, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the city, to the effect that, as between grantee and the city, any and all construction, operation, and maintenance by any grantee of any system in the city shall be and shall be deemed and construed in all instances and respects to be, under and pursuant to such franchise, and not under or pursuant to any other right, privilege, power, immunity, or authority whatsoever.
(1974 Code, § 111.05) (Ord. 38-79, passed 7-16-1979)
(A) Any franchise granted under this chapter is for the present territorial limits of the city and for any area added thereto during the term of this franchise.
(B) The grantee shall be responsible for making basic subscriber services available to each dwelling unit within the present territorial limits, and to new housing complexes, new subdivisions, and to newly added areas as they reach a density of 50 dwelling units per cable mile. In such new housing complexes, new subdivisions, and newly added areas where the density is less than 50 homes per cable mile, installation may be made, however, on an additional fee basis at the discretion of the grantee.
(1974 Code, § 111.06) (Ord. 38-79, passed 7-16-1979)
(A) Methods of construction, installation, and maintenance of the grantee's system shall comply with the National Electrical Safety Code, National Bureau of Standards Handbook 81 (part 2), United States Department of Commerce, November 1, 1961, to the extent that such code is consistent with local law affecting the construction, installation, and maintenance of electric supply and communication lines.
(B) Any tower constructed for use in the grantee's Cable Communications System shall comply with the standards contained in Structural Standards for Steel Antenna Towers and Antenna Supporting Structures, EIA Standards RS-222-A, as published by the Engineering Department of the Electronics Industries Association, 2201 I Street, N.W., Washington, D.C. 20006.
(C) All methods of construction, installation, and maintenance of the grantee's system shall also comply with all applicable laws and rules of the State of Ohio and the city. The city reserves the right to adopt by ordinance an agreement regulating the joint use of city-owned utility poles and easements in conjunction with the grantee and from time to time to issue, by duly adopted ordinance, such reasonable rules and regulations concerning the construction, operation, and maintenance of the system as are consistent with the provisions of this chapter, and necessary to protect its residents' rights to the peaceful enjoyment of the public ways.
(D) In the construction, installation, maintenance, removal, or repair of the facilities contemplated, the grantee shall exercise reasonable care and diligence to avoid damage, injury, or nuisance to persons or property and shall install and maintain its facilities in a workmanlike manner so as to minimize the public inconvenience and so as not to interfere with any facilities of the city. The grantee shall comply with all existing city regulations pertaining to the use of the public ways entered and opened by it so as to prevent injury to persons or damage to property while work is being performed. All such public ways shall be restored to their former condition by the grantee as soon as is practicable after completion of work.
(E) The grantee shall be permitted to place its cables, wires, or other equipment overhead when local or state law permits overhead construction and other like facilities are overhead. The grantee shall place its cables, wires, or other equipment underground when local or state law require underground placement and where all other like facilities are underground.
(F) The city shall use its best efforts with pole owners to promote the joint use of poles so as to assure the broadest possible wiring of premises within the city. In the case of city-owned poles such joint use may be subject to a separate fee at the option of the city. The grantee shall not erect any new poles without first obtaining the city's written approval of the location, type, and specifications thereof.
(G) Notwithstanding any other provisions of this franchise, if, in any part of the city, satisfactory aerial or underground easement rights over private property cannot be obtained on reasonable terms, the company shall have no obligations to build its system or provide service in that area.
(H) The grantee shall have the right to trim trees in, and overhanging, the public ways in a workmanlike manner, so as to protect its facilities from abrasive contact. Notwithstanding the foregoing, the city, at its option, may, following written notice to the grantee, undertake such trimming at the grantee's expense.
(I) The grantee shall, upon reasonable notice and without expense to the city, relocate its facilities to accommodate such public works or improvements as the city shall in its judgment designate. The grantee shall, at the expense of any person holding a building moving permit issued by the city, temporarily raise, lower, or remove its wires to permit the moving of that building. In such event, the grantee shall be given not less than 7 days' advance written notice to arrange for such temporary wire changes. The grantee's estimated charges for such work shall be payable not less than 48 hours in advance.
(J) The city shall have the right to supervise or inspect all work performed by the grantee or its agents upon public ways to ensure compliance with this section. In the event such inspection reveals that the grantee has failed, in the city's judgment, to fulfill its obligations under this section, the city shall notify the grantee, in writing, of its specific deficiencies. Absent commencement of corrective action by the grantee within 48 hours of receipt of said notification, the city may undertake the necessary repairs or restorations at the grantee's expense.
(1974 Code, § 111.07) (Ord. 38-79, passed 7-16-1979)
(A) System configuration.
(1) The grantee shall establish a modular Cable Broadband Communications System with at least one distribution head located in the service area.
(2) The grantee shall institute its Basic Subscriber Service on what shall be known as cable A, and the grantee shall provide subscribers with a converter by which means those subscribers will be able to receive a minimum of 35 channels. That converter or other device will be designed to permit closed circuit and selective viewing through the deletion or addition of filters or tuning elements. Cable A must, as a minimum, have the technical capacity for 2-way communications.
(3) The grantee shall construct an institutional network on what shall be referred to as cable B. Cable B shall be capable of delivering 17 channels in the forward direction and transmitting, in the reverse direction, 18 channels for video or nonvideo uses on either an open or closed circuit basis. Appendix A lists the institutions to which cable B will initially be available. The grantee shall provide the appropriate connectors and extend cable to an access point within each institution, but the users of cable B will provide their own terminal equipment. Unlimited use of cable B and technical assistance to institution users shall be provided by the grantee without additional charge. The grantee may propose an alternate to provide similar service. A joint committee appointed by the Council and the Board of Monroe Township Trustees shall review such proposal and shall make a recommendation as to its acceptance to the respective legislative bodies who will take final action.
(B) Subscriber services. The grantee will, as a minimum, for the rates proposed in the request for proposal, furnish to its subscribers the services listed in divisions (1) through (4) below.
(1) All operating broadcast television signals for which the grantee shall have received certification, and as are specifically outlined in the official request for proposal as filed. The specific signals proposed is one basis on which the proposals are evaluated as to compatibility with the needs and desires of the area to be serviced.
(2) Twenty separately processed FM stations.
(3) Automated channels carrying information such as time, weather, news, stock market quotations, and community messages.
(4) An audio override capability for transmission of emergency messages and alerts.
(C) Cablecasting and access facilities.
(1) The grantee shall provide a community access facility which is centrally located in the franchise area. There shall be the ability to cablecast directly from this facility and it shall be equipped as provided in Appendix C, or with comparable substitute equipment as approved by a joint committee appointed by the Council and the Board of Monroe Township Trustees. This joint committee shall also establish an implementation schedule setting out the specific dates certain equipment must be made available by the grantee.
(2) Initially, 1 community channel shall be activated in the cable system for programming produced by the community and the grantee. If, in the opinion of the joint committee, this channel becomes saturated, a second channel will be made available for community programming.
(3) The community channel will be governed by a set of operating rules and procedures that will be established by a community access organization with input from the grantee.
(4) The access equipment will be made available to the community on a schedule agreed upon by the community access organization and the grantee. The grantee shall support the community in using the access facility with training and technical assistance and maintenance of the equipment.
(D) Interconnection. The grantee may be required to interconnect its system with any other broadband communications system operating in an adjacent territory. Such interconnection shall be made within 60 days of a request made by the city. For good cause shown the grantee may request and the Council may grant reasonable extensions of time to comply with the requirements. Council also reserves the right to waive this requirement.
(E) Standby power. The grantee shall maintain equipment capable of providing standby power for headend, transportation, and trunk amplifiers for a minimum of 2 hours. The equipment shall be constructed so as to automatically notify the cable office when it is in operation and to automatically revert to the standby mode when the AC power returns. All utility safety regulations must be followed to prevent a standby generator from powering the dead utility line, with possible injury to an unwitting lineman.
(F) Local business office. The grantee shall maintain an office within the limits of Monroe Township, Miami County, Ohio, which office shall be open during normal business hours. This office shall have a publicly listed telephone which can be reached toll-free from the service area described in this chapter, and shall be so operated that complaints and requests for repairs or adjustments may be received and processed with a minimum delay. Provision shall also be made for telephonically receiving service interruption calls on a 24-hour basis.
(1974 Code, § 111.08) (Ord. 38-79, passed 7-16-1979)
(A) Initial rates for basic subscriber service. The grantee's initial rates for basic subscriber service shall conform to the format outlined in Appendix B and will be those as proposed in the request for proposal and accepted by the city.
(B) Changes in rates for basic subscriber service. These rates shall be subject to modification only by the Council and only in accordance with the following procedures:
(1) The grantee may petition the Council for a change in rates by filing a revised rate schedule in the form of Appendix B, including its justification for this proposed new schedule.
(2) Within 10 days of notification by the Council of the place and time established for a hearing on that petition, the grantee shall notify its subscribers of the same by announcement on at least 2 channels of its system, between the hours of 7:00 a.m. and 9:00 p.m., for 5 consecutive days. Following all proper notice, but in no event later than 90 days from the date of that petition, the Council shall hold an appropriate public hearing to consider the proposed new rates, at which hearing all parties desiring to be heard, including the grantee, shall be heard on any matters relating to the performance of this chapter, the grantee's services, and the proposed new rates.
(3) Within 90 days after hearing, the Council shall render a written decision on the grantee's petition, either accepting, rejecting, or modifying the same and reciting the basis of its decision.
(4) If the Council fails to act within 6 months of the date of the grantee's petition pursuant to division (1) above, the grantee shall thereafter be entitled to put its proposed new rates into effect on a provisional basis, provided that it shall keep a full and accurate accounting of all income resulting from those provisional rates and shall be obliged for a period of up to 6 months thereafter to refund the amount by which those provisional rates exceed the rates ultimately established by the Council. On request by the Council, the grantee shall provide a bond or other reasonable surety in an amount not to exceed the previously existing rates to ensure that possible refunds due under this division shall be promptly made.
(5) The criteria for the Council's decision in such matters shall be the establishment of rates which are fair and reasonable to both the grantee and its subscribers and shall be generally defined as the minimum rates necessary to meet all applicable costs of service, including a fair return on all invested capital, all assuming efficient and economical management. The Council and the grantee both recognize that appropriate models and methods for rate regulation of cable are in an evolutionary period and intend that the Council should be guided by the body of law and precedents which will be developing over time. Until more precise standards are thereby developed and absent special showings to the contrary, the Council and the grantee agree that rate changes not exceeding changes from the date hereof in any, some, or all of the indicators appearing below, shall be considered fair and reasonable provided that the grantee shall have made a reasonably adequate showing of the applicability of that indicator to the rate issue at hand.
(a) The Handy-Whitman Cost Index of Total Distribution Plant now listed on Line No. 38, for the North Central Region, which includes Ohio.
(b) The arithmetic average of monthly, single-family subscriber rates for the Ohio Cable Television Systems.
(c) Any other reputable index or indicator generally recognized as being apposite to cable television rates.
(C) Rates for other than basic subscriber service. At least 90 days in advance of the offering of any services or equipment other than basic subscriber service, the grantee shall file with the Council a schedule of the rates and charges and the rules relating to such other services and equipment and shall not alter the same on less than 90 days' notice and only in accordance with the then applicable rules and regulations of the FCC and other agencies of competent jurisdiction. If, at any time, applicable federal or state law would permit Council regulation of those rates in accordance with the procedures in division (B), such regulation shall be authorized hereunder.
(D) All rates to be nondiscriminatory. The grantee shall administer any and all rates and charges so as not to give preference to or discriminate among subscribers of like category or class. Nothing in the foregoing shall be deemed to prevent the grantee from establishing the following:
(1) Special temporary reduced rates for periodic promotional offers to attract new subscribers, or for subscribers who pay promptly;
(2) Reasonable policies for deposits, penalties, or denial of service where a particular subscriber has proven a bona fide credit problem;
(3) Special schedules of rates and charges for service to premises in annexed areas not meeting the density standards established in § 111.06, provided that the same are not inconsistent with applicable FCC rules and regulations; or
(4) Separate rates for commercial and noncommercial users of access channels.
(E) Free connection. The grantee shall furnish, without charge, 1 connection for each existing public building, as listed on Appendix A; provided that such public buildings are located within areas served by the system and shall furnish, without charge, regular service for such connections so long as such system remains in operation in the area. This provision also applies to any future public building constructed or purchased in the franchise area. Any school, so listed, or added, may install at its expense, but not to exceed the grantee's actual cost for such installation, such additional connections for classroom purposes as it desires, provided that such connections shall not interfere with the operation of the system, and such additional connections also shall be without charge for regular service.
(F) Disconnection. Except as otherwise provided by the Council, there shall be no charge for the disconnection of any installation or outlet. If any subscriber fails to pay a properly due monthly subscriber fee, or any other properly due fee or charge, the grantee may disconnect the subscriber's service outlet, provided, however, that such disconnection shall not be effected until 45 days after the due date of that delinquent fee or charge and shall include 5 days' written notice of the intent to disconnect properly mailed to the subscriber in question. After disconnection, upon payment in full of the delinquent fee or charge, any reasonable collection expense or penalty, and the payment of a reconnection charge, the grantee shall promptly reinstate the subscriber's cable service.
(G) Franchise fee.
(1) As consideration for the franchise granted herein, the grantee shall pay to the city, as a minimum, an amount equal to 3% of the grantee's gross annual receipts.
(2) In the event that the law, in the future, permits some larger basis for computing this fee, this Council shall, at its election, be entitled to collect additional monies upon 60 days' prior written notice to the grantee.
(3) The Council shall utilize franchise fees as necessary, to defray the costs of local regulation of the grantee, to support the development of the access channels and generally to encourage development of the system.
(4) Payments due under this provision shall be payable twice each calendar year on a schedule to be determined by the City Manager. Each such payment shall be accompanied by a report, certified by an officer of the grantee, showing the basis for the computation thereof.
(5) No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, and all amounts paid shall be subject to audit and recomputation by the Council for a period of 1 year after receipt thereof. In the event that recomputation results in additional fees owed, such amount shall be subject to a 10% per annum interest charge.
(6) Nothing in this section shall be interpreted as relieving the grantee of its liability for other properly applicable local taxes.
(H) Franchise award fee. There shall be imposed a 1 time franchise award fee to be paid to the city by the grantee within 45 days of official notification that a franchise has been awarded. This fee is intended to defray the clerical, printing, consulting, legal, and other costs associated with the awarding of a franchise under the authority of this chapter. The amount of the fee is established as $5,000, or the actual costs of these services, as determined by the city, whichever amount is less.
(1974 Code, § 111.09) (Ord. 38-79, passed 7-16-1979)
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