COMPETITIVE FRANCHISE ORDINANCE
FOR THE
O-27-2008
TABLE OF CONTENTS
ARTICLE I.
GRANT OF FRANCHISE AND GENERAL PROVISIONS
SECTION 3. RIGHTS AND PRIVILEGES OF COMPANY
SECTION 5. FRANCHISE TERRITORY
SECTION 6. DURATION AND ACCEPTANCE OF FRANCHISE
SECTION 8. CATV
FRANCHISE REQUIRED
SECTION 9.
USE OF
COMPANY FACILITIES
SECTION 11. COMPANY'S
FINANCIAL RESOURCES AND PERFORMANCE BOND
SECTION
12. LIABILITY AND INSURANCE
SECTION
14. FAILURE OF CITY TO ENFORCE THIS
FRANCHISE ORDINANCE NO WAIVER OF
TERMS THEREOF.
SECTION
15. RIGHTS OF INDIVIDUALS
SECTION 18. TIME IS OF THE
ESSENCE TO THIS FRANCHISE ORDINANCE
SECTION
19. COMPLIANCE WITH STATE AND FEDERAL LAWS
SECTION 201. MOST FAVORED NATION CLAUSE
SECTION
21. RELIEF FROM THIS FRANCHISE.
ARTICLE
II. CATV SYSTEM EXTENSION, OPERATION, STANDARDS
AND PROCEDURES
SECTION 1. DESCRIPTION OF CABLE TELEVISION DISTRIBUTION SYSTEM.
SECTION 2.
SERVICE AVAILABILITY AND RECORD REQUEST
SECTION 3.
CATV SYSTEM EXTENSION
SECTION 4.
CONSTRUCTION AND TECHNICAL STANDARDS
SECTION 6. OPERATIONAL STANDARDS
SECTION 7.
CONTINUITY OF SERVICE MANDATORY
SECTION 8. COMPLAINT PROCEDURE
SECTION 9.
COMPANY RULES AND REGULATIONS
SECTION
10. PAYMENT OF MULTICHANNEL VIDEO PROGRAMMING SERVICES TAX
SECTION 11. TRANSFER OF OWNERSHIP
OR CONTROL
SECTION
12. AVAILABILITY OF BOOKS AND RECORDS.
SECTION
13. OTHER PETITIONS AND APPLICATIONS
SECTION
15. REQUIRED SERVICES AND FACILITIES
SECTION
16. PUBLIC SERVICE INSTALLATION AND I-NET.
ARTICLE
III. ADMINISTRATION AND REGULATION
SECTION 1. RULES AND REGULATIONS
SECTION 2. PERFORMANCE
EVALUATION SESSIONS
SECTION 3.
RATES; REQUEST TIMING; DETERMINATION OF AUTHORITY.
SECTION 4.
DEFAULT OF FRANCHISE; REVOCATION, TERMINATION AND CANCELLATION OF FRANCHISE.
SECTION 6. PURCHASE
OF CATV SYSTEM BY
THE CITY
SECTION 7.
THEFT OF SERVICES AND TAMPERING
O-27-2008
COMPETITIVE
FRANCHISE ORDINANCE
AN ORDINANCE
ESTABLISHING A COMPETITIVE FRANCHISE FOR CABLE SERVICES FOR THE OPERATION
WHEREAS, pursuant to Kentucky Constitution Section
164 and Kentucky Revised Statute
67.083, the City is authorized and
empowered to award a cable
television franchise, and
WHEREAS, Section 621(a)(1) of the
Communications Act of 1934 (the “Cable Act”) prohibits franchising authorities
from unreasonably refusing to award competitive franchises for the provision of
cable services (47 U.S.C. § 541(a)(1)), and
WHEREAS, the Federal Communications Commission (“FCC”) has
found that new entrant providers of cable television service “face ‘steep
economic challenges’ in an ‘industry characterized by large fixed and sunk
costs,’ without the resulting benefits incumbent cable operators enjoyed for years
as monopolist in the video services marketplace,” (FCC Order (as such term is
hereinafter defined) at 63) and
WHEREAS,
the FCC’s record indicates that “’a competitive video provider who enters the
market today is in a fundamentally different situation’ from that of the
incumbent cable operator’’ because the new entrant must “‘win’ every customer
from the incumbent and thus do not have ‘anywhere near the number of
subscribers over which to spread the costs.’” (FCC Order at 63), and
WHEREAS,
the FCC has determined that its construction of Section 621(a)(1) “best serves
the [Communications] Act’s purposes of promoting competition and broadband
deployment.” (FCC Order at 43), and
WHEREAS, the FCC
has expressly recognized that it is unlawful for a franchising authority “to
refuse to grant a competitive franchise on the basis of unreasonable build-out
mandates,” (FCC Order at 43) and
WHEREAS, the FCC
has found that “[b]uild-out requirements… impose significant financial risks on
competitive applicants, who must incur substantial construction costs to deploy
facilities within the franchise area in exchange for the opportunity to capture
a relatively small percentage of the market,” (FCC Order at 43) and
THEREFORE, BE IT ORDAINED THAT a non-exclusive competitive cable franchise, for the
installation, operation and maintenance
of a Cable Communication System
in the incorporated boundaries of
the City, is created and said franchise shall have an expiration date of
Provided, however, that said franchise shall be
subject to and conditioned upon the
following terms and conditions:
This Ordinance shall be known and may be cited as
the "2008 Competitive Cable Franchise
Ordinance” (hereinafter referred to as “Franchise”).
For the purpose of this Ordinance the following
terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in
the plural number include the
singular number, and words in the singular number include the plural number. The word
"shall" is mandatory and “may”
is permissive. Words not defined shall be given their common and ordinary meaning.
1. "Basic
Service" shall be defined as that term is defined in the Cable Communications Policy Act of 1984 as amended.
2. "Cable
Act" means the Cable Communications Policy Act of 1984 (Public Law No. 98-549), and the Cable Television
Consumer Protection and Competition Act of 1992 (Public Law No. 102-385) as amended by the Telecommunications
Act of 1996 (Public Law No. 104-104), together with current federal legislation
governing Cable Television Systems and their operation in the United States and any subsequent amendments thereto.
3. "Cable
Channel" or "Channel" means a portion of the electromagnetic spectrum which is used in a Cable
System and which is capable of
delivering a television channel (as television
channel is defined by the FCC by regulation).
4. "Cable
Communication System" or CATV 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 Subscribers without using any public right-of-way;
C. a
facility of a common, carrier which is subject,
in whole or in part, to the provisions of Title II of the Cable Act, except that such facility shall be considered a cable system (other than
for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used
in the transmission of Video Programming directly to Subscribers, unless the
extent of such use is solely to
provide interactive, on-demand services
(as such term is defined in 47 U.S.C. Section 522(12); or
D. any
facilities of any electric utility used solely for operating its electric utility system;
E. an
open video system that complies with 47
U.S.C. § 573.
5. “City”
shall mean the municipal entity known as
6. "Company"
is the grantee of rights under this
Ordinance, or its successor, transferee or assignee.
7. “Competitive
Franchise” is a cable franchise awarded to an applicant in an area currently
served by another cable operator or cable operators in accordance with 47
U.S.C. § 541(a)(1).
8. Digital Converter” means an
electronic device which is designed
to receive signals in a digital or compressed format and translate those
signals for receipt on a Subscriber's
television receiver.
9. “Effective
Date” shall mean the date upon which the City adopts the franchise set forth in this document.
10. "FCC" shall mean the Federal
Communications Commission and any legally
appointed, designated or elected agent or successor.
11. "Installation"
shall mean the connection of the system from feeder cable to
Subscribers' terminals.
12. "Institutional
Network" shall mean the broadband communications
facilities physically joined with the Cable System which connecting public
facilities and organizations within the geographical confines of the City, which allow for the transmission of
video, data and other signals from Major Public Buildings and state accredited
Private Schools (as such terms are defined in Article II Section 17), to the headend for
retransmission on the subscriber network and to Major Public Buildings
and Private Schools and which is not
available to residential subscribers of the Cable System.
13. “Interactive”
means a Cable Television System that is capable of two-way communications.
14. "Pay
Service” shall mean the delivery over the system of programming to Subscribers for a fee or charge over and above the charge for Basic Cable Service on a per
program, per channel or other
subscription basis.
15. “
16. “
17.
"Service Area" means all areas in the City having at least twenty (20) dwelling units per
street mile served in accordance with the provisions of this franchise.
18. "Street"
shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, public way or place, sidewalk, alley, court,
boulevard, parkway, drive or easement
now or hereafter held by the City
for the purpose of public travel and shall include other easements
or rights-of-way as shall be now held or hereafter held by the City and the Commonwealth of Kentucky.
19. "Subscriber"
means a lawful recipient of cable television service.
20. "User"
means a party utilizing a cable television system channel for purposes of production or transmission of material to Subscribers, as contrasted with
receipt thereof in a Subscriber capacity.
The nonexclusive franchise granted by the City
pursuant to this Ordinance shall grant to the Company the right and
privilege to erect, construct, operate,
maintain and repair in, upon, along,
across, above, over and under the street any poles, wires, cable, underground conduits, manholes, and other
television conductors and fixtures
necessary for the maintenance and operation of a CATV System for the
interception, sale, transmission and
distribution of television programs and other audiovisual electrical signals;
and the right to transmit the same to
the inhabitants of the City on the terms
and conditions hereinafter set forth.
Upon adoption of this franchise and acceptance
hereof by the Company, the Company agrees to be bound by all the terms and conditions contained herein.
The franchise
is for the present territorial limits of the City, and for
any area
henceforth added to those
territorial limits during
the term of the franchise.
The franchise
shall take effect when legally
adopted by the City according to
The term of this Franchise shall be until
In accepting
this franchise, the Company acknowledges
that its rights hereunder are
subject to the police power of the City to adopt
and enforce general ordinances necessary to the safety
and welfare
of the public; it agrees to
comply with all applicable general
laws and ordinances enacted by the
City pursuant to such power.
Any conflict between the provisions of this
franchise and any other present or future lawful exercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not
of general application in the
jurisdiction or applies exclusively to Company or CATV systems and contains provisions inconsistent with this franchise shall prevail only if, upon such
exercise, the City finds that an
emergency exists constituting a danger
to health, safety, property, or general welfare or such exercise is
mandated by law.
No CATV system shall be allowed to be constructed
upon, occupy or use the streets of the
The City shall have
the right, during the life of this
franchise, to install
and maintain free of charge upon
the poles solely owned by the Company
any wire and pole fixtures that do
not unreasonably interfere with the CATV operations of the Company.
The City and the Company shall provide the other party with the name and address of the
contact person designated to receive
notices, filings, reports, records, documents,
and other correspondence. All notices shall be delivered to each party's contact person by (a) certified mail, return receipt requested, (b) personal service
with a signed receipt of delivery, or
(c) overnight with receipt verification. All other filings, reports, records, documents, and other correspondence may be delivered by any permissible
means including, but not limited to: facsimile transmission ("faxing"); personal service; or
overnight mail or package delivery. The delivery of all notices, reports, records, and other correspondence shall be deemed to have
occurred at the time of receipt
(unless otherwise designated by state law).
1. The
Company, throughout the term of the franchise, shall maintain adequate financial resources to perform, or provide a plan acceptable to the City demonstrating that it can perform, on a timely
basis, all obligations pursuant to
this Ordinance.
2. Within
thirty (30) days after the award of this franchise, the Company shall file with the City a Performance Bond in the amount of Two Hundred and Fifty Thousand
Dollars ($250,000) in favor of the
City.
3. In the event the
Company fails to comply
with any law, ordinance
or regulation governing the franchise, or
fails to observe, fulfill and perform
well and truly each term and condition
of the franchise, there shall be recoverable, jointly and severally, from the principal and surety of
the bond, any damages or loss suffered by the City as a result, including the full amount of any
compensation, indemnification, or
cost of removal or abandonment of any property
of the Company, plus a reasonable allowance for attorney's fees, including the City’s legal staff, and costs.
4. The
bond shall contain the following endorsement:
It
is hereby understood and agreed that this bond may not be canceled by the
surety and that the intention not to
renew may not be stated by the surety
until thirty (30) days after receipt
by the City or its designated agent,
by registered mail, a written notice of such intent to cancel or not to
renew.
5. Prior to drawing upon the performance bond for the purposes described in this Section, the City shall notify the Company in writing that payment is due and that the Company shall have ten (10) days from the receipt of such written notice to make a full and complete payment. If the Company does not make the payment within ten (10) days, the City may withdraw the amount thereof, with interest and penalties, from the performance bond. The Company's recourse, in the event Company believes any taking or withdrawing from the performance bond is improper, shall be through legal action.
6. No later than
thirty (30) days after mailing to the Company,
by certified mail, notification of a withdrawal pursuant to Section 12(5) above, the Company shall
replenish the performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount
to the performance bond shall
constitute a material violation of this franchise.
1. The
Company shall maintain, and by its acceptance of the franchise specifically agrees that it will maintain, throughout the term of the franchise, liability
insurance insuring the City, and the Company in the minimum amount of $5,000,000 for bodily injury and/or property damage
in any one occurrence. This limit may include a self-insured retention
and may be increased by mutual agreement of the parties.
2. The
insurance policy obtained by the Company in compliance with this section shall be issued by a company or companies duly licensed to do business in the
Commonwealth of Kentucky, carrying a rating by Best's, or some other nationally
recognized rating service, of not
less than A. Copies of certificates
of insurance for all policies required hereunder shall be filed and maintained with the City during the term of the franchise, and may be changed from time to time to reflect
changing liability limits.
3. Neither
the provisions of this section nor any damages recovered by the City shall
be construed to limit the liability of the Company under any franchise issued
hereunder or for damages.
4. Certificates
of insurance must be provided to the City within thirty (30) days of the execution of this franchise.
1. The
Company shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, the City's, officers, boards, and all members, commissions and employees against any and all claims, suits,
actions, liability and judgments for damages including, but not limited to,
expenses for reasonable legal fees
and disbursements, and liabilities assumed
by the City in connection therewith
to persons or property in any way:
A. Arising
out of or through the acts or omissions of
the Company, its servants, agents or employees;
B. Arising
out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation, infringement or dilution of any
copyright, trademark, trade name,
service mark or patent, (excluding claims arising out of or relating to City programming); and
C. Arising
out of the Company's failure to comply with
the provisions of any federal, state, or local statute, ordinance or regulation applicable to the Company
in its business hereunder.
2. The
foregoing indemnity is
conditioned upon the City giving the Company prompt written notice of the making of any claim or the commencement of any action, suit or other proceeding
covered by the provisions of this
section. Nothing herein shall be deemed to prevent the City from cooperating with the Company and participating in the defense of any
litigation by its own counsel at its
sole cost and expense.
The Company shall not be excused from complying
with any of the terms and conditions
of this franchise Ordinance by any failure
of the City upon any one or more
occurrences to insist upon or to seek compliance
with any such terms or conditions.
1. The Company shall not deny service, deny
access, or otherwise discriminate
against Subscribers, channel users, or general
citizens on the basis of race, color, religion, national origin, and all
executive and administrative orders relating to origin, age, or sex.
The Company shall comply at all
times with all other applicable federal, state and local laws and regulations,
and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this Ordinance
by reference.
2. The
Company shall strictly adhere to the equal employment
opportunity requirements of the FCC,
state statutes and local regulations, currently in force and as amended
from time
to time.
3. The Company
shall operate the CATV System in a manner that protects against invasions of any
Subscriber's privacy, in accordance
with 47 U.S.C. 551.
In addition to any notice requirements set forth
in Article I, Section 10, minimum
public notice of any public meeting relating
to this franchise shall be by publication at least once in a local newspaper of general circulation, in
compliance with Kentucky Revised
Statute Chapter 424 and in accordance with the notice provisions of Article I, Section 10.
If any section, subsection, sentence, clause,
phrase or portion of this Ordinance
is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be
deemed
a separate, distinct and independent provision
and such holding shall not affect the validity of the remaining portions thereof.
Whenever the franchise Ordinance shall set forth
any time for an act to be performed by or on behalf of the Company, such time
shall be deemed of the essence and any failure of the Company to perform within the time allotted shall
always be sufficient grounds for the
City to invoke an appropriate
penalty, including possible revocation of the franchise Ordinance.
Notwithstanding any other provision of this
franchise to the contrary, the Company shall at all times comply with all laws
and regulations of the state and federal government or any administrative agencies thereof.
If at any time during the existence of this
Franchise, Company modifies,
supplements, or otherwise deviates from an initial franchise agreement with
another county or city in its Northern Kentucky service area to provide either significantly more favorable service offering(s) or technical upgrade(s), which
directly affect the level of service
rendered to Subscribers or other franchising authorities, (including but not limited to greater channel capacity, greater responsibility to provide
Institutional Networks, greater
technical upgrade of the Cable System overall, or greater requirements to provide Public, Educational or Governmental Access and specifically excluding
any settlement payments or other
remedies for past noncompliance), than those provided to the City hereunder, then said more favorable service offering(s) or technical upgrade(s) shall be extended to the City, upon request, within
three (3) years. Notwithstanding the forgoing, the City shall
not be permitted to pick and choose discrete provisions from other cable
franchise agreements with other local franchising authorities in
1. Written Petition. Company may file a written
petition, at any time, with the City seeking relief from one (1) or more provisions of this franchise. The relief requested may specifically
include the delay in implementation
of one (1) or more provisions of this franchise.
2. Competitor Subject to Regulation
by the City. If at any time during the existence of this franchise, a competing multi-channel video
programming distributor, subject to
regulation by the City under the
Cable Act, is granted more favorable term(s) than those established for the
Company under this franchise (including but not limited to lesser channel
capacity, lesser requirements to
provide Public, Educational, or Government access, less onerous reporting requirements, less onerous customer notification requirements, less
restrictive billing practices, less
onerous customer service requirements, or less responsibility to provide Institutional Networks or interconnection), then such term(s) shall also be simultaneously extended to the Company,
upon the written request of
the Company, so that no
provider of multi-channel service shall receive an unfair competitive advantage; provided, however, in considering such request of Company, the
City shall take into consideration all of the circumstances in existence at the time and the
proportional relationship of the operations. For example, if
the City grants a franchise
to another cable operator
whose franchise area is smaller than
that of Company, taking the whole
of the Company's franchise area into consideration,
any financial or other
requirement imposed on
such new cable operator will be on a pro rata basis
with that of the Company's
financial and other obligations
under this franchise.
3. Competitor
Not Subject
to Regulation
by the City. The City recognizes
that potential competitors of the Company, including but
not limited to wireless broadcasters, video dial tone providers, and direct
broadcast satellite services, may not be subject
to regulation
by the City. If, at any time during
the existence of this franchise,
a competing multi-channel service, not subject to regulation by the City under the Cable Act, operates within the
geographical confines of the City, under terms more favorable than those established for the Company under this
franchise, (including but not limited
to lesser channel capacity, lesser requirements
to provide Public, Educational, or Government access, less onerous reporting
requirements, less onerous customer notification requirements, less restrictive
billing practices, less onerous customer service requirements, or less responsibility to provide institutional networks
or interconnection), then the Company shall be permitted to
petition the City for relief from
such term(s), so that no provider of
multi-channel service shall receive an unfair competitive advantage. The City may,
but shall not be obligated to, grant the relief requested by the Company.
1. The
Company will voluntarily provide service using either a 1GHz analog and digital
RF system over a fiber optic infrastructure.
Such service will include over two hundred (200) channels of digital
content, as well as high-definition (HD) programming, digital video recorder
(DVR) and video-on-demand (
2. The
Company will keep the City advised of its major upgrades or projects for the Cable System. Upon request, the
Company shall also make available to
the City, pursuant to the open
records exception set forth in KRS 61.878(1)(c)(1), the following design
information: general description as to the upgrades, time tables,
location of cable and significant facilities
or equipment, and marketing.
The Company shall provide cable communications
service throughout the entire
franchise area pursuant to the provisions of this franchise and shall keep a record for at least three (3) years of all requests for service received by the
Company. This record shall be available for public inspection at
the local office of the Company
during regular office hours.
1. As
a new entrant provider of cable television service, the Company’s ability to
construct and extend its system will be largely dependent upon the market
penetration and success it achieves over time.
In recognition of this and the many challenges of being a new entrant,
the Parties agree to the following:
A.
The Company will make its cable service available to at
least 5% of the residential households existing in the Franchise Area by no
later than
B.
If the Company achieves a market penetration of at
least 30% of the households passed by its cable system after completion of
Phase 1, the Company will make its cable service available to at least 20% of
the residential households in the Franchise Area by no later than December 31,
2012 so long as the Company is achieving a market penetration of at least 30%
of the households passed by its cable system (“Phase 2”). Market penetration will be measured as of
June 30th of each year during Phase 2. If the Company is achieving a penetration of
at least 30% of the households passed by its system as of June 30th, the
Company will commit to build for the following calendar year on a schedule
designed to achieve the Phase 2 buildout percentage by
C.
If the Company achieves a market penetration of at
least 40% of the households passed by its cable system after completion of
Phase 2, the Company will make its cable service available to at least 40% of
the residential households existing in the Franchise Area by no later than
December 31, 2015 so long as the Company is achieving a market penetration of
at least 40% of the households passed by its cable system (“Phase 3”). Market penetration will be measured as of
June 30th of each year during Phase 3. If the Company is achieving a penetration of
at least 40% of the households passed by its system as of June 30th, the
Company will commit to build for the following calendar year on a schedule
designed to achieve the Phase 3 buildout percentage by
D.
If the Company achieves a market penetration of at
least 40% of the households passed by its cable system after completion of
Phase 3, the Company will make its cable service available to at least 60% of
the residential households existing in the Franchise Area by no later than
December 31, 2018 so long as the Company is achieving a market penetration of
at least 40% of the households passed by its cable system (“Phase 4”). Market penetration will be measured as of June
30th of each year during Phase 4.
If the Company is achieving a penetration of at least 40% of the
households passed by its system as of June 30th, the Company will
commit to build for the following calendar year on a schedule designed to
achieve the Phase 4 buildout percentage by
E.
If the Company achieves a market penetration of at
least 40% of the households passed by its cable system after completion of
Phase 4, the Company will make its cable service available to at least 80% of
the residential households existing in the Franchise Area by no later than
December 31, 2020 so long as the Company is achieving a market penetration of
at least 40% of the households passed by its cable system. (“Phase 5”). Market penetration will be measured as of
June 30th of each year during Phase 5. If the Company is achieving a penetration of
at least 40% of the households passed by its system as of June 30th, the
Company will commit to build for the following calendar year on a schedule
designed to achieve the Phase 5 buildout percentage by
F.
On or before August 1 of each year of the franchise,
the Grantee shall furnish the City with a report containing the number of homes
passed as of June 30, the market penetration as of June 30 and Grantee’s plans
for building during the upcoming year.
2. Both Parties acknowledge that the above-referenced
benchmarks are based in large part upon a static view of the video services
market as of the effective date of this Ordinance. Accordingly, the Parties agree to re-open
discussions on this topic and adjust or eliminate these benchmarks in the event
of a material adverse change in market conditions. A material adverse change in market
conditions will be deemed to have occurred if the Company can demonstrate that
its gross margin on cable services provided in the Franchise Area has declined
by 20% or more or market penetration has declined by 20% or more.
1. Compliance
with Construction and Technical Standards. The Company
shall construct, install, operate and maintain its system in a manner consistent with all laws, ordinances, construction standards, governmental requirements,
and FCC technical standards, which
standards are incorporated by reference
herein. In addition, the Company shall provide the City upon request, with a written report of the
results of the Company's annual proof of performance tests conducted pursuant
to FCC standards and requirements.
2. Additional Specifications. The Cable Communications System shall operate by means of transmission
lines of optical fiber and/or
coaxial cable to distribute the signals.
Construction, installation and maintenance of the
Cable Communications System shall be
performed in an orderly and workmanlike manner. All new cables and wires
shall be installed, where possible,
parallel with electric and telephone lines.
Multiple cable configurations shall be arranged in parallel and bundled with due respect for
engineering considerations.
Company shall at all times comply with:
A. National Electrical Safety Code
(National Bureau of Standards) ;
B National
Electrical Code (National Bureau of Fire Underwriters) ;
C.
D.
Applicable
FCC or other federal, state and local regulations including Technical
Standards; and
E. Applicable
local permits.
In any event, the CATV System shall not endanger
or interfere with the safety of
persons or property or with the functioning
of property, in the franchise area or other areas where the Company may have equipment located.
Any antenna structure used in the cable
communication system shall comply with the standards and requirements of the
U.S. Department of Transportation for
the construction, marking, and lighting of antenna structures.
All working facilities, conditions and procedures
used during construction, installation
and maintenance of the CATV system
shall comply with the standards of the Occupational Safety and Health Administration.
Rf leakage shall be checked and maintained in
conformance with FCC Rules and Regulations.
The Company shall maintain equipment capable of
providing standby power for headend,
transportation and trunk amplifiers for
a minimum of two hours.
In all areas of the City where the cables, wires, and other like facilities (including
but not limited to telephone and power), are placed of all public utilities, underground, the Company shall place its cables,
wires, or other like facilities underground
to the maximum extent that existing technology
reasonably permits.
The methods
of construction, upgrade, installation, maintenance and repair of the Cable System shall comply and be
consistent with good engineering practices for Cable Television Systems of similar size and design, and consistent
with and satisfy FCC performance and
technical standards. All work shall be
performed by the Company in a good and workmanlike manner.
3. Compensation. The Company shall compensate property owners for any damages caused by its
installation, construction, operation
or removal of its cable facilities, as required by the Cable Communications Policy Act of 1984, 47
U.S.C. 541(a)(2)(c).
1. Interference with Persons and Improvements. The Company's
system, poles, wires, and appurtenances shall be located, erected and maintained so that none of its facilities shall unreasonably endanger or interfere with the
lives of any persons, or with the
safety and use of the property, safety of other persons, or interfere with any improvements the City or
Commonwealth of Kentucky may deem proper to make, or unnecessarily hinder or obstruct the free use of
the streets, alleys, bridges,
easements or public property.
2. Minimum Interference with
3. Restoration To Prior Condition. In case of any disturbance of pavement, sidewalk, driveway or
other surfacing, the Company shall,
at its own cost and expense, replace and restore all paving; sidewalk, driveway, landscaping, or surface of any
street or alley disturbed, in as good condition as before said work was commenced and in accordance with
standards for such work, as set by the
City.
4. Erection, Removal, and Common Uses of Poles.
A. No
poles or other wire-holding structures shall be erected by the Company without prior approval of the City with regard to location, height, type and any other pertinent aspect. However, no location of any pole or wire-holding structure
of the Company shall be a vested interest and the Company shall remove
or modify such poles or structures at its
own expense whenever the City determines that such removal or modification
would enhance the public convenience.
B. Where
poles or other wire-holding structures already
existing for use in serving the City
are available for use by the Company, but the Company does not make arrangements for such use, the City may require the Company to use such poles and structures if the City determines that such use would enhance the public convenience and that the terms of the use
available to the Company are just and
reasonable.
C. Where the City or a public utility serving the City desires to make use of the poles of the Company, the Company shall
immediately initiate good faith
negotiations to permit such use for such consideration and upon such terms as are just and reasonable.
5. Relocation of the Facilities. In the event that, at any
time during the period of this franchise, the Commonwealth or the City shall lawfully elect to alter or change the grade of any street, alley or other
public ways for purposes of a public improvement, the Company, upon reasonable notice by the proper
government unit, shall remove or
relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
6. Cooperation
with Building Movers. The
Company shall, on the request of any
person holding a building-moving permit issued by the City, temporarily raise
or lower its wires to permit the
moving of buildings. The person requesting
such raising or lowering shall bear the expense of such temporary removal,
raising or lowering of wires, and the Company
shall have the authority to require such payment in advance. The
Company shall be given not less than
forty-eight (48) hours advance notice
to arrange for such temporary wire changes.
7.Tree Trimminq. The
Company shall abide by any City ordinance relative to tree trimming.
1. The
Company shall put, keep and maintain all parts of the system in good condition throughout the entire
franchise period.
2. Upon
the reasonable request for service by any person located within the franchise territory, the Company shall, within seven (7)
days, furnish the requested service to such person within the terms of the line extension policy. A
request for service shall be unreasonable for the purpose of this
subsection if no activated distribution facility capable
of servicing that person's
block has as yet been installed.
3. The
Company shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the
shortest time reasonable. Such
interruptions, insofar as possible, those
shall be preceded, where reasonable, by notice to persons affected thereby and shall occur during
periods of minimum system use.
4. The Company shall not allow its cable
or other operations to interfere with
television reception of persons not served by the Company, nor shall the system
interfere with, obstruct or hinder in
any manner, the operation of the various utilities serving the residents within
the confines of the City.
5. The
Company shall continue, through the term of the franchise, to maintain the technical standards and quality of service set forth in this Ordinance. Should the
City find, by resolution, that the Company has failed to maintain these
technical standards and quality of
service, and such failure continues for three (3) months following such resolution, the failure
will constitute a breach of a
condition for which the remedy of Article
1. It
shall be the right of all Subscribers to continue to receive service insofar as their financial and
other obligations to the Company are honored. The Company, therefore,
shall at all times maintain all parts of
the CATV System in good condition and repair
so as to provide that service on an uninterrupted basis. In the event that the Company elects to
overbuild, rebuild, modify or sell
the System, or the City gives notice
of its intent to terminate or fails to renew this franchise, the Company shall
act so as to ensure that all Subscribers receive continuous, uninterrupted service except when the interruption
occurs as a result of an event of
force majeure as provided in this Franchise.
2. In
the event of a change of the franchisee, or in the event a new operator acquires the system, the
Company shall cooperate with the City, new franchisee or operator in
maintaining continuity of service to all Subscribers. During such period, the Company shall be entitled
to the revenues for any period
during which it operates the system, and the Company shall be entitled to reasonable costs for its services when it no longer operates the system.
3. In
the event that the Company fails to operate the system for seven (7) consecutive days without the approval of the City may, at its option, operate the system or designate an operator until such time as the Company restores service under
conditions acceptable to the City or
their designated agent, or a permanent alternative operator is selected.
If the City is required to fulfill this
obligation for the Company, the Company shall reimburse the City for all reasonable costs, expenses or damages incurred by the City that result from the Company's failure to perform.
1. The
City shall have primary
responsibility for the continuing administration
of the franchise terms and implementation of complaint procedures
2. During
the term of this franchise, and any renewal thereof, the Company shall maintain a local business office within the geographic confines of Campbell County
for the purpose of receiving and resolving
all complaints regarding the quality
of service, equipment malfunctions,
and similar matters, and shall meet the customer service standards
specified by the FCC at 47 C.F.R. 76.309(c). The
office shall be reachable by a local, toll-free telephone call to receive
complaints regarding quality of service, equipment malfunctions and similar
matters. The local office shall be open
to receive inquiries or complaints from Subscribers during normal business hours, and in no event less than
9:00.a.m. to
3. Should
the City’s system be severed by sale or transfer from the other
4. As
Subscribers are connected or reconnected to the system, the Company shall, by appropriate means, such as a card or
brochure, furnish information concerning the procedures for making inquiries or complaints, including the address
and local telephone number of the
employee or employees or agent to whom such
inquiries or complaints should be addressed, and furnish information concerning the office responsible for administration
of the franchise with the address and
telephone number of the office
responsible for administration of the franchise.
5. When
there exists evidence that the Company does not satisfy FCC performance and technical
standards, the City shall have the right and authority to require the Company to test, analyze,
and report on the performance of the
CATV System. The Company shall fully cooperate
with the City, in performing such testing, and shall prepare a report reflecting
the results of such tests, if requested, within thirty (30) days after notice. Such report shall include
the following information:
A. The nature of the complaints or the problem that precipitated the special tests;
B. What
system component was tested;
C. The equipment used and procedures employed in testing;
D The method, if any, in which such complaint or problem was resolved;
E. Any
other information pertinent to said tests and analysis that maybe required.
The City may require that such tests be supervised by a professional engineer not on the
permanent staff of the Company. The
engineer should sign all records of
special tests and forward to the City
such records with a report
interpreting the results of the tests and recommending actions to be taken. The expense of the
professional engineer shall be borne
by the City unless a significant
violation of FCC performance and
technical standards is found in which case the expense shall be borne by
the Company.
The City's right under this section shall be
limited to requiring tests, analyses,
and reports covering specific subjects with characteristics based on said complaints or other evidence when and under
such circumstances as the City, has
reasonable grounds to believe that the
complaints or other evidence require that the tests be performed to protect the
public against substandard cable service.
The Company shall have the authority to promulgate
such rules, regulations, terms and
conditions governing the conduct of its
business as shall be reasonably necessary to enable it exercise its rights and
perform its obligations under this franchise,
and to assure an uninterrupted service to each and all of its Subscribers. Those rules, regulations,
terms and conditions shall not be in conflict
with the provisions herein or in
conflict with applicable state and federal laws, rules and regulations.
Payment
to the state shall be made at the times and in conformance with the
requirements of Kentucky Revised Statutes, Chapter 136, as revised by House
Bill 272 (Tax Modernization) in the 2005 Regular Session of the Kentucky
General Assembly. If there is a change
of state or federal law related to the imposition of a franchise fee or other
tax or fee, including without limitation property taxes and occupation license
fees, during the term covered by this franchise Ordinance, Company will comply
with the law as changed or amended.
1. Transfer of Interest. Except as provided in Section
11(7) hereof, neither this franchise nor any rights, interest or obligations of the Company in the
Cable System or pursuant to this franchise shall in any event be sold,
assigned, transferred, leased, subleased,
pledged, mortgaged or disposed of (including,
but not limited to, by forced or voluntary sale, sale or lease of all or substantially all of the assets
or a merger, consolidation, sale of
stock of Company, receivership or other means) in whole, or in part, nor
shall title thereto, either legal or
equitable, or any right or interest therein, pass to or vest in any person or
entity either by act of the Company, by act of any person or entity holding control of or any interest in the Company or the Cable System or this franchise by
operation of law or otherwise,
without the prior express written approval by the City
through their designated agent, and in
compliance with applicable state and federal laws. For purposes
of this Section 11, the transfers described in this Section 11(1) and 11(2) below are hereinafter
referred to as a "Transfer."
2. Transfer of
Control or Stock. Notwithstanding
any other provision of this
franchise, except as provided in Section
11(7) hereof, no change in control of or any controlling interest in the
Company, the Cable System or this franchise shall occur after the Effective Date of this franchise,
by any act of the Company, by act of
any person or entity holding control of the Company, the Cable System or the franchise granted herein, by operation of law or otherwise, without the prior
express written approval by the City and
in compliance with applicable state and federal laws. For purposes of this Section 11, the word "Control" or "Controlling
Interest" means actual working control in whatever manner exercised,
including without limitation, working
control through ownership, debt instruments or negative control, as the case may be, of the Cable System
or of the Company.
"Control" or "Controlling Interest" as used herein may be held simultaneously by more than one person or
entity, or group of persons or
entities.
3. Default. Every transfer without the prior written approval of
the City shall constitute a default
of this franchise.
4. Default Procedure. In the
event of such a default, the City
shall proceed according to the
procedure set forth in this franchise, and
any applicable state or federal law.
5. Application for Approval. The
Company shall petition in writing
for the City's written approval
through their designated agent for a proposed transfer. In making such petition, the Company shall file
the appropriate form mandated by federal law or regulation with the City. The petition
shall detail the terms of the
transfer and all applicable qualifications
of the assignee or transferee relating to fulfilling the terms of the
franchise.
6. Consent Factors. The
City, through their designated agent,
will not unreasonably withhold its/their
approval to any transfer. In making such a determination, the City shall
consider the following; provided, however, that the City will
respond within one hundred and twenty (120) days or such other period as applicable law may require:
(1) technical
qualifications, experience and expertise
of the proposed assignee or transferee (including
conducting an investigation of the proposed assignee or transferee's service record in other communities);
(2) legal qualifications of the proposed assignee or transferee;
(3) financial qualifications and stability of the proposed
assignee or transferee;
(4) the corporate connection, if any, between the Company
and the proposed assignee or transferee; and
(5) Company's compliance with the terms and conditions of the franchise.
If
the City does not respond or fails to
render a final decision within
one-hundred and twenty (120) days (or such other period as applicable law shall
require) of receipt of the Company's petition for approval, said petition
shall be deemed to have been approved, unless
the Company and the City agree to an
extension of time.
7. Consent Not
Required.
A. Finance Purposes. Notwithstanding the foregoing, no
consent shall be required for the Company to hypothecate, pledge, mortgage or
assign all or any part of the Cable System, or any right or interest therein
for financing purposes; provided,
that each such hypothecation, pledge,
mortgage or assignment for security
purposes shall be subject to the rights of the City pursuant to this franchise and applicable law.
B. Other Transfers. Notwithstanding any other provision of this Section 11, no consent shall be required for any transfer of the franchise or any interest in the Cable System or
the Company to any existing or future
affiliates of the Company in connection with an internal reorganization of any one or more of such affiliates, as long
as; (i) such affiliate has the requisite expertise and qualifications (as
contemplated above in Section 11(6) and applicable federal law) in the
operation of a cable system, and (ii)
the provisions of Section 11(7) are fulfilled. This provision should not be interpreted to permit any
other transfer, reorganization or
change of control as contemplated in Sections 11(1) and (2).
8. Assumption Requirements.
Any approval by the City of a transfer shall
be contingent upon the prospective transferee or assignee of the Company agreeing in writing to the following:
A. To abide by and accept the terms of the franchise or otherwise becoming a signatory to the
franchise Ordinance;
B. To assume and be responsible for
the obligations and liabilities of
the Company, known and unknown; and
C. That the approval by the City does not constitute a waiver or release of any noncompliance claims the City may have against the Company or of rights of the City under the franchise or applicable law upon discovery,
whether arising before or after the effective date of the transfer.
The
Company shall fully cooperate in making available at reasonable times, and the
City shall have the right to inspect, the books, records, maps, plans and other like materials of the Company necessary for enforcement of this franchise, at
any time during normal business
hours. However, when volume and convenience necessitate, the Company may require inspection to take place on the Company's premises at the local office.
Copies
of all petitions, applications, communications and reports submitted by the Company to the Federal
Communications Commission, Securities
and Exchange Commission (specifically 10K and 8K filings), or any other federal or state regulatory commission or agency having jurisdiction
in respect to any matters affecting
cable television operations authorized pursuant to the franchise, shall be provided to the City upon its written request.
The
Company shall provide the City, no
later than one hundred and twenty (120) days after the end of the Company's
fiscal year, a copy of Grantee’s or
Grantee Parent’s Form 10-K for the
preceding twelve (12) month period. This report shall be certified as correct by an authorized officer
of the Company. The City may hire an independent Certified Public Accountant
to audit the Company's income records, in which case, the Company shall provide all necessary records to the Certified
Public Accountant.
1. Access Channels. In order to promote and develop
Educational access programming in the
City, Company shall, upon the adoption
of this Franchise by the City make available sufficient Access Channel capacity and the necessary electronics to
provide two (2) channels for the use of
the City consisting of:
(A) One (1) Educational Access Channel
for use by the universities, colleges
and other institutions dedicated for
use by higher education; and
(B) One (1) Educational Access Channel
for use by elementary and secondary
schools and board of education located within the geographical confines of the City.
The
Access Channels shall be dedicated for the purposes specified above and are exclusive of the Public
Service Installation and the I-Net requirements.
2. Access Channels Location. During
the term of this Franchise, the
Access Channels, as provided in § 623 of the Cable Act (47 U.S.C. § 543), shall be located on the
Basic Service Tier. Channel
repositioning of the Access Channels, where reasonably possible, shall be held to a minimum in order that the public can become accustomed to Access Channel
locations.
3. Leased Access Channels.
Company will comply with FCC regulations requiring the provision of leased
access channels.
4. Editorial
Control. Subject
to applicable law, the Company may not exercise any editorial control over the
content of programming on the Access
Channels.
5. Signal Quality. The Company shall assure that
signal quality and reliability for
all Upstream Transmissions from origination
points specified in this Franchise and all Access Channels meet the same technical and performance
standards as are required for the
entire subscriber network pursuant to this franchise and FCC regulations.
6. Repair and Response Time for
Access Channels. Under normal operating conditions, the Company
shall respond to technical problems related to the Access Channels
(with the exception of any equipment owned and operated by the City) within four (4) hours, with the exception of public safety. In such cases, the Company shall respond immediately.
The Company shall provide the City with technical consultation on the I-Net as needed.
7. Educational Access Indemnity.
(A) Indemnity. To the extent permitted by law, the City shall at all times defend, indemnify, protect, save harmless and exempt
the Company, its officers, agents,
and employees, from any and all liabilities, penalties, damages or charges arising out of or in any way connected with claims, suits, demands, causes
of action or judgments or awards of
damages, whether compensatory or
punitive, or expenses arising therefrom, either at law or in equity, which
might be claimed now or in the
future, which may arise out of, or be
caused by any material or media
carried on the Access Channels or
I-Net including, but not limited to,
any claim for an infringement of any copyright, trademark, trade name, service
mark or patent, for defamation of any
person, firm or corporation, for invasion of the right of privacy, or for
failure by the City to secure
consents from the owners or authorized
distributors of programs to be delivered
over the Access Channels;
(B) Appointment of
Counsel. With respect to any claim, suit, demand or cause of action made or
brought against the Company by
reason of any event to which reference
is made in this Section 16, the City
shall obtain counsel for the Company.
The Company shall have the option to
also retain its own counsel at its cost.
(C) Notice. Company
shall give the City timely written notice of the making of any claim or the commencement of any action,
suit or other proceeding covered by
the indemnity in this Section 16. In
the event any such claim arises, the Company
shall tender the defense thereof to the City, and said City shall have the right and duty
to defend any claim arising hereunder,
and the Company shall cooperate fully therein.
8. The
CATV system shall have a minimum channel capacity of eighty (80) channels as
set forth above.
9. The Company shall provide all Subscribers
receiving channels showing first-run
movies and special entertainment events
with a parental control device that prevents the unauthorized viewing of such channels.
10. Company
shall install, operate and maintain an Emergency
Alert System ("
11. Area wide Interconnection of CATV Systems.
(A) Interconnection. The
Company shall cooperate with the City
to interconnect the Educational
Access Channels of the Cable System with any other Cable
System in the geographic confines of Boone,
(B) Negotiations with Other Systems. Upon receiving the request of
the City, the Company shall
immediately initiate negotiations
with the affected Cable System or Systems and shall report to the City the results of such negotiations no later than sixty (60) days after such initiation.
(C) Costs. All
costs associated with supplying signals, including both construction and
operation costs, to the point of interconnection with the Company's Cable
system shall be borne by the other
affected Cable System. All costs incurred by the Company in connection with such interconnection may be treated as external costs under the rate
regulations of the FCC.
12. Public
Access Responsibilities.
The Company shall
ensure that access programming produced by or on behalf of the City or its
residents can be viewed by the City’s residents and that the Forth Thomas Board
of Education shall have use of the access channel for use of elementary and
secondary schools. The City and the Grantee
shall jointly enforce the incumbent cable provider’s obligation to interconnect
as necessary, such that the same access programming is made available to all
citizens such that the same access programming is made available to all
citizens subscribing to a cable system.
The City understands that the
Grantee’s ability to fulfill the requirements of Section 15 may depend on
achieving appropriate interconnection with the incumbent cable provider.
13. The
City may require the Company to make one (1) additional Access Channel
available for government and/or public access.
The Company shall have ninety (90) days after receiving written notice
from the City to make said channel available.
14. If at any time the City becomes a
member of the Campbell County Cable Board, the Company shall make available sufficient Access Channel capacity and the necessary electronics to
provide for all of the Access Channels, which are available to the Campbell County Cable Board.
15. The
Company shall provide free Cable
Service to the City by installing
its cable to a point of demarcation
reasonably selected by it at the City offices. The City may, at their cost,
install as many outlets as they chose at the
1.
2. Digital Convertors. All such
public and private service installations
shall include one Digital Converter free of charge. The service provided shall be Basic Service and
"Cable Programming Service"
as defined in the Cable Act.
3. I-Net Capital Support by Grantee. If and to the extent an
Institutional Network (“I-Net”) is constructed by the incumbent cable provider
for use by the City following the adoption of this franchise, Grantee will pay a pro rata share of any capital costs incurred
in or associated with the purchase of equipment necessary for the City to make
use of the I-Net. The City must identify and communicate in
writing to each cable operator any capital support requirement which will be
incurred in or associated with the purchase of necessary equipment for a given
year of the franchise on or before August 1 of the year prior to the
expense. (For example, the City must
identify a capital support requirement for 2010 no later than
4. Treatment. All funds and support for the
I-Net shall not constitute a
franchise fee, shall fall within one or more of the exceptions to 47 U.S.C. Section 542, and shall be treated as external costs by the Company pursuant to the rate
regulations of the FCC.
The City, or their designated agent may adopt regulations at the request of the
Company upon application.
1. The
City, or their designated agent, and
the Company may hold scheduled performance evaluation sessions within thirty
(30) days of the third, sixth and ninth anniversary dates of the Company's award of the franchise and as may be
required by federal and state law.
2. Special
evaluation sessions may be held at any time during the term of the franchise at the request of the City, or their designated agent, or the Company.
3. All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation in accordance with KRS Chapter 424. The Company shall notify its Subscribers of all evaluation sessions by announcement on at
least two (2) of the highest-rated
origination channels of its System, between the hours of 7:00 p.m. and 9:00 p.m.,
for five (5) consecutive days preceding each session.
4. Topics
that may be discussed at any scheduled or special evaluation session include, but are not limited to, penalties; free or discounted services; application of new technologies; system performance; services provided; programming
offered; customer complaints; privacy
issues; amendments to this Ordinance; judicial
and FCC rulings; line extension policies; and Company or City rules.
5. Members
of the general public may add topics to be discussed at the evaluation session either by working through the negotiating parties or by presenting a petition
meeting the following requirements.
If such a petition bears the valid signatures
of fifty (50) or more residents of the franchise territory, eighteen (18) years of age or older, the proposed topic or topics shall be added to the list of
topics to be discussed at the
evaluation session.
6. The City, at its discretion, may
establish periodic meetings for miscellaneous Cable regulatory purposes.
The
Company’s rates for cable service shall be regulated pursuant to the Cable
Television Consumer Protection and Competition Act (47 U.S.C. Section 543), FCC
rules and regulations, and the City’s rules, as they now exist or may be
hereafter adopted, modified or amended in compliance with FCC rules.
1. General Statement. Because
the Company's failure to comply with
certain material provisions of this franchise will result in injury to the City or to Subscribers, and because it will be difficult to
estimate the extent of such injury,
the City and the Company hereby agree
that the liquidated damages and penalties stated below represent both parties' best estimate of the damages resulting
from the specified injury.
2. Material
Violations. When any
event, act or omission on the part of
the Company occurs which represents a violation of a material provision of this franchise and the
interests of the City or Subscribers are negatively affected, then such event,
act or omission may be considered a breach
of this franchise. A material violation includes, but is not limited to, the following:
A. The
Company has knowingly, or with the
knowledge of an officer of Company,
made a material, false statement; or
B. Failure to make the required payments, including
failure to pay its pro rata share of any capital funding financial support
associated with I-Net equipment, or
failure to file the required reports as provided under this franchise; unless the Company is lawfully contesting the legality or applicability of such payments or
reports; or
C. A Transfer of the franchise or the Company
without the prior written consent of
the City, or
D. The Company knowingly and consistently
violates any FCC order, ruling or
regulation concerning technical or performance standards, unless the Company is lawfully contesting the legality or applicability of such order; or
E. The Company knowingly and repeatedly
violates the franchise, regardless of
whether any single provision violated is deemed immaterial; or
F. Failure
to restore service after one hundred twenty-six (126) hours of interrupted service, except when approval of such interruption is obtained from the City or when the interruption occurs as a result of an event of force majeure as
provided in this franchise.
The City agrees that it will
enforce the terms of this and other cable franchise agreements on a
competitively neutral basis. For
purposes of establishing the date at which a fine may be imposed, the date of violation will be the date
that the event can clearly be established or, if it cannot be so established, the date the Company
receives notice of the violation from the City. For purposes of giving
rise to the opportunity to cure, the date of violation will be the date the Company receives notice of the
violation from the City and not the date of the event.
In all events, the City shall be obligated to notify the Company in
writing in a reasonably timely
manner of any violation as soon as it has reasonable cause to believe that a violation has occurred. Under such circumstances, the City shall notify the Company, in writing, of the
specific breach, and direct the
Company to comply with all such provisions of this franchise. The Company shall have fifteen (15) days as to monetary violations and thirty (30) days as to
non-monetary violations subsequent to receipt of the Notice in which to cure the violation before the City may impose sanctions. If the non-monetary violation is of such a nature so as to require
more than thirty (30) days to cure
and the Company proceeds diligently within the thirty (30) days to cure the violation, the Company must proceed diligently within the next thirty (30) days to cure
the violation, or as promptly as
possible thereafter to cure the violation.
In any case where the non-monetary violation is not cured within sixty (60) days of notice of said
violation from the City and such cure
has not been diligently pursued by
the company within said time, or such
other time as the Company and City may
mutually agree to, the City may
proceed to impose sanctions as
hereinafter provided. Should the City
impose monetary damages at this
point, such damages may accrue from the date the violation occurs and not from the date the City determines there has been a violation.
3. Due Process Hearing. In the event the Company fails
to correct the enumerated condition
within the time set forth above, the
City shall notify the Company of the
time and place of a due process administrative
hearing to be conducted by the City or
its designee which shall be held not
less than thirty (30) days thereafter.
4. Procedures and Liquidated Damages. At the
time of the public due process
hearing, the Company may present information on the current status of the alleged breach of the franchise. If the situation has been resolved, or steps are
being taken to resolve the situation,
the Company may present such information at the hearing. Upon the conclusion of the hearing, the City, or its designated agent, may determine that the Company has cured any violation and thereby
dismiss the matter, or may determine from the evidence presented
therein, that there was a continuing
violation subsequent to the correction
period which could have been prevented by the Company. The City or its designated agent shall notify the Company of any finding that the Company
failed to cure a noticed violation
within the time provided above, while having the ability to do so, the reasons therefor and the evidence in support thereof. Upon such notice, liquidated
damages may be imposed as follows:
A. For repeated, willful or continuing failure
to submit reports, maintain records,
provide documents or information: $50 per
calendar day for each day the violation continues;
B. Failure to make payment of all monetary
obligations within the specified time
period: $100 per day for each day the violation
continues; provided this penalty may not be imposed in the event the City, elects or has elected to charge
interest;
C. For failure to materially comply with all
construction standards, obligations
and other requirements of this franchise: $200 per day for each day the violation continues; and
D. For violation of other material provisions
of this Franchise: Up to $200 per day
for each day the violation continues.
5. Termination. In lieu of all other sanctions,
rights and remedies available to the
City, the City may revoke, terminate or cancel the franchise by repealing the ordinance by which it was granted, with an effective date of not less than six (6) months
thereafter. If the City's revocation is unsuccessful, liquidated damages can
be imposed until the violation is
cured. The exercise of one remedy shall not foreclose use of another. Default remedies may not be used in combination with monetary damages; in
addition, the Company may exercise any rights it has under law or at equity.
6. Savinq Clause.
Notwithstanding any other provision of
this franchise, it is the intent of the City not to subject the Company to penalties,
fines, forfeitures, or revocation of the franchise in any of the following instances:
A. The violation was not intentional by the
Company and the effect thereof on the
City was de minimis; or
B. There is no pattern of violation or the
occurrence of repeated violations of
the same matter over time is discontinued after notification of the Company thereof by the City; or
C. The violation was reasonably beyond the
control of the Company.
Upon the foreclosure or other judicial sale of
all or a substantial part of the
CATV system, or upon the termination of any lease or mortgage covering all or a substantial part of the CATV system, the Company shall notify the City of such fact, and such notification shall be treated as a notification
that a change in control of the
Company has taken place, and the provisions of this franchise governing the consent of the City to such change in control of the Company shall apply.
1. Right
to Purchase.
In accordance with the Cable Act, in the event (a) the City terminates the franchise, pursuant to provisions of this franchise; or (b) the franchise
is not renewed at the normal
expiration of the franchise term, and the Company has exhausted all rights to
renewal under the Cable Act, the City
shall have the right, directly or as
an intermediary, to purchase the Cable System
or effect the ownership of the Cable System to another person. In the instance of non-renewal, any such
acquisition or transfer shall 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. If the
franchise is revoked for cause, the
acquisition or transfer shall be at an equitable price. If the System is purchased at the time of transfer, the
acquisition shall be at a fair market value. The City shall notify the Company in writing within thirty (30) days of its intent
to acquire the Cable System on its
behalf or its intent to effectuate the ownership
of the Cable System to another person. The purchase price shall be based upon the value of the Cable
System determined pursuant to this
Section.
2. Date of Valuation. The date
of valuation shall be no earlier
than the day following the date of expiration or termination, and no later than the date the City makes an offer for the Cable System.
3. System Valuation. The value of the Cable System shall be determined by a qualified
appraiser mutually agreed upon by the
City and the Company. The City, or
their designated agent shall hire the
qualified appraiser at their cost.
The appraiser shall determine the current worth of the assets pursuant to the
above. Under no circumstances shall the value under this Section be less than the book value of the assets, less accumulated depreciation. In the case
of termination or non-renewal, no
value shall be assigned to the franchise.
4. Intent to Purchase. Upon
receipt of the City's intent to
purchase the Cable System at the
value established above, the Company shall
have forty-five (45) days within which to accept the valuation as the purchase price of the Cable
System. In the event the purchase
price is not acceptable, the parties shall have one hundred and twenty (120) days within which to negotiate an acceptable purchase price.
5. Transfer
to City. Upon exercise of this option, the payment of
the agreed-upon sum by the City and
their service of official notice of
such action upon the Company, the Company shall immediately transfer to the City possession and title to all facilities and property, real and personal, of the Cable System, free from any and
all liens and encumbrances not agreed
to be assumed by the City in lieu of
some portion of the purchase price set forth
above, and the Company shall execute such deeds or other instruments of conveyance to the City as shall be necessary for this purpose.
6. Arbitration. In the event the City and the Company are unable to agree upon the value of the Cable System within the time
limits set forth above, either party may require by written notice to the other that the value of the Cable
System be submitted to arbitration in the following manner:
A. The City and the
Company shall each, within fifteen (15) days after such written notice, select
an arbitrator who shall be a disinterested person with reasonable knowledge and
experience relative to the subject to
be arbitrated. The two arbitrators thus
selected shall immediately thereafter select a third arbitrator who shall likewise be a disinterested
person having reasonable knowledge and experience relative to the subject to be
arbitrated.
B. The panel of arbitrators shall commence a hearing on the issue of valuation and shall receive all
relevant information from the
parties.
C. The hearing shall be recorded and may be transcribed at the request of either party. At the
option of the Company, all hearings,
proceedings, debate and deliberations or portions thereof shall be open to the public and at such times and places as contained in the notice or as
thereafter publicly stated; except that, if two arbitrators agree, debate and deliberations may be held in closed session.
D. The value of the Cable System as determined by the arbitration panel shall be pursuant to the above.
E. Within
thirty (30) days after the close of the hearing, the panel of arbitrators shall prepare written findings and a decision agreed upon by a majority of the
panel which shall be filed with the
City and served by certified mail upon the Company. Should there be no majority decision, the proceeding shall become null and void, and shall be started anew, unless
the parties extend by mutual
agreement the time which the panel of arbitrators
has to make a decision.
F. The expense of the arbitrators individually selected by the parties shall be borne by the
respective party, and the expense of the third arbitrator and the expenses
incurred by the panel as a whole shall be borne equally by the parties.
7. Purchase Price.
The purchase price shall be the value
of the Cable System as determined by
the arbitration panel, subject to the right of either party to seek a judicial determination of the purchase price subsequent to
the decision of the arbitration
panel.
1. No
person, whether or not a Subscriber to the CATV System, may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment or
apparatus of the Company, or commit
any act with intent to cause such damage, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and apparatus, or
appurtenances of the Company with the
intent to obtain a signal or impulse from the cable system without authorization from and compensation to the Company,
or to obtain cable television or other television or other communications service with intent to cheat
or defraud Company of any lawful
charge to which it is entitled.
2. Any
person convicted of violating any provision of this section is subject to a fine of not less than One
Hundred Dollars ($100.00) nor more
than Five Hundred Dollars ($500.00) for each offense. Each day's violation of this section shall he considered a separate offense.
The Company shall not be deemed in
default of provisions of this franchise where performance was rendered
impossible by act of war, riots, civil disturbances, labor, strikes, floods or other circumstances beyond the reasonable control
of Company, and the franchise shall
not be revoked or the Company penalized for such non-compliance; provided that the
Company takes prompt steps to bring itself back into compliance and to comply
as soon as possible under the circumstances with its franchise obligations without unduly endangering the health or safety of
the Company's employees or the
integrity of its property, or without unduly endangering the health or safety of the public. Notwithstanding the foregoing, neither mere economic hardship nor
any misfeasance or malfeasance of the
Company or its directors, officers or employees
shall constitute a force majeure event under this franchise. The Company shall provide written notice
to the City or their designated agent
of the applicability of this Section
within a reasonable period of time after
its discovery of the same.
Passed and Approved on first reading this 17th
day of November, 2008
Passed and Approved on second reading this
1st day of December, 2008 and publication this 11th day
of December, 2008.
Approved:
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Approved:
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