Chapter 1 code of ordinances

CHAPTER 114

CUSTOMER SERVICE STANDARDS
FOR CABLE TELEVISION

114.01 Authority	114.03 Rules and Procedures
114.02 Notification	114.04 Noncompliance

114.01 AUTHORITY. The City has the legal authority to adopt and enforce customer service standards for the cable television system in the City as permitted by the Cable Television Consumer Protection and Competition Act of 1992. Upon review of the customer service standards adopted by the Federal Communications Commission (FCC) on March 11, 1993, by MM Docket No. 92-263 of the FCC, and deeming it in the best interest of the City, the City Council herewith adopted by reference the above mentioned customer service standards for cable television service, effective (at least 90 days from passage of the ordinance or date of written notification to Cable Operator, whichever is later).

114.02 NOTIFICATION. The City Clerk shall notify the Cable Operator by registered mail with return receipt that the City has adopted said customer service standards for cable television service to become effective (at least 90 days from passage of the ordinance or date of written notification to Cable Operator, whichever is later).

114.03 RULES AND PROCEDURES. The City Council or Cable Commission appointed by the Council shall establish rules and procedures regarding the process to remedy possible violations of the customer service standards by the Cable Operator. The Council or Commission shall provide for notice and opportunity for hearing for both the customers and the Cable Operator in such process.

114.04 NONCOMPLIANCE. If after notice and opportunity for hearing, the City determines that the Cable Operator is not in complete compliance with all the provisions of the customer service standards, the Cable Operator shall reduce the rate for the basic tier of cable service by [10%, 20%, or 25%] until such time that the City has been satisfied that the Cable Operator is in compliance of all the provisions of the customer service standards. In addition, the Cable Operator shall pay to the City the sum of $100.00 for each day that the Cable Operator fails to be in compliance of all the provisions of the customer service standards after the date that the Council has passed a resolution stipulating the sections where the Cable Operator is in noncompliance.

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CHAPTER 115

BROADBAND TELECOMMUNICATIONS

115.01 Purpose and Scope	115.24 Required Extensions of Service
115.02 Definitions	115.25 Establishment of Telecommunications Commission
115.03 Compliance by City with FCC Rules and Regulations	115.26 Powers and Duties
115.04 Violations Against Franchise	115.27 Method of Appointment
115.05 Franchise Required	115.28 Composition of Commission and Qualifications
115.06 Election and Costs	115.29 Compensation Members; Meetings and Procedures
115.07 Renewal	115.30 Budget and Funding
115.08 Franchise Fee Payment	115.31 New Developments
115.09 Nature of Nonexclusive Franchise	115.32 Employment Practices
115.10 Franchise Ordinance	115.33 Preferential or Discriminatory Practices Prohibited
115.11 Acceptance and Effective Date	115.34 Compliance with Applicable Laws and Regulations
115.12 Reviews	115.35 Liability and Indemnification
115.13 Transfer	115.36 Performance Bond
115.14 Conditions of Sale	115.37 Receivership and Foreclosure
115.15 Construction Standards	115.38 Permits and Authorizations
115.16 Operational Standards	115.39 Transactions Affecting Ownership or Control
115.17 Customer Service Standards	115.40 Rights Reserved to the City
115.18 Testing for Compliance	115.41 Enforcement: Forfeiture, Revocation, Sanctions
115.19 Records, Reports and Maps	and Liquidated Damages
115.20 Inspection of Property and Records	115.42 Further Agreement and Waiver by Franchisee
115.21 Resolving Disputes	115.43 Time Is of the Essence
115.22 Emergency Alert Override	115.44 Impossibility of Performance
115.23 Interconnection	115.45 Actions of Parties

115.01 PURPOSE AND SCOPE. The purpose of this chapter is to regulate broadband telecommunications networks in the City, which operate pursuant to City franchise for the provision of cable television and other services and to ensure that such networks’ use of the public rights-of-way does not interfere with public health, safety, and welfare and to benefit the citizens of the City through the use of broadband telecommunications networks and technology.

115.02 DEFINITIONS. For use in this chapter the following terms are defined:

1. 
   “Basic cable rates” means the monthly charges for a subscription to the basic cable service tier and the associated equipment.
   
2. 
   “Basic cable service” means any service tier which includes the retransmission of local television broadcast signals.
   
3. 
   “Benchmark” means a per-channel rate of charge for cable service and associated equipment which the FCC has determined is reasonable.
   
4. 
   “Broadband telecommunication network (BTN)” means all of the component, physical, operational and programming elements of any network of cables, optical, electrical or electronic equipment, including cable television, used for the purpose of transmission of electrical impulses of television, radio or data, and other intelligences, either analog or digital, for sale or use by the inhabitants of the City.
   
5. 
   “Cable Act” means, collectively, the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996, and as may be amended from time to time.
   
6. 
   “Cable operator” means any person or group of persons:
   

1. 
   Who provide cable service over a cable system and directly or through one or more affiliates owns a significant interest in such a cable system; or
   
2. 
   Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
   

7. 
   “Cable service” means: (i) the one-way transmission to subscribers of video programming; or (ii) other programming service; and (iii) subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
   
8. 
   “Cable 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 which term does not include: (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that crosses public rights-of-way; (iii) 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 Section 621(c) of the Cable Act to the extent such facility is used in the transmission of video programming directly to subscribers; or (iv) any facilities of any electric utility used solely for operating its electric utility systems.
   
9. 
   “Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable service and which is capable of delivering a television signal.
   
10. 
    “Cost of service showing” means a filing in which the cable operator attempts to show that the benchmark rate or the price cap is not sufficient to allow the cable operator to fully recover the costs of providing the basic cable service tier and to continue to attract capital.
    
11. 
    “Cresco Broadband Telecommunications Commission (CBTC)” means the duly authorized and acting commission appointed by the City Council pursuant to ordinance established for the purpose of administering regulations pertaining to the existence and operation of broadband telecommunications networks within the City.
    
12. 
    “FCC” means the Federal Communications Commission and any legally appointed or elected successor.
    
13. 
    “Franchise” or “franchise agreement” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes construction and operation of the cable system.
    
14. 
    “Franchisee” means any person receiving a franchise pursuant to this chapter and under the granting franchise ordinance and such person’s lawful successor, transferee or assignee.
    
15. 
    “Franchise fee” means any tax, fee or assessment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status as such. The term “franchise fee” does not include: (i) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment that is unduly discriminatory against cable operators or cable subscribers; (ii) in the case of any franchise in effect on the date of the enactment of the ordinance codified in this chapter, payments that are required by the franchise to be made by the cable operator during the term of such franchise for, or in support of, the use of PEG access facilities; (iii) in the case of any franchise granted after such date of enactment, capital costs that are required by the franchise to be incurred by the cable operator for PEG access facilities; (iv) requirements or charges incidental to the awarding or enforcing the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages; or (v) any fee imposed under Title XVII, United States Code.
    
16. 
    “Grantee” means Triax Midwest Associate, L.P., or the lawful successor, transferee or assigns thereof.
    
17. 
    “Gross revenues” means any revenue received by the franchises from the operation of the cable system in the service area.
    
18. 
    “Initial basic cable rates” means the rates that the cable operator is charging for the basic cable service tier, including charges for associated equipment, at the time the City notifies the cable operator of the City’s qualification and intent to regulate basic cable service rates.
    
19. 
    “Must-carry signal” means the signal of any local broadcast station (except superstations) which is required to be carried on the basic cable service tier.
    
20. 
    “New programming” means programming not previously transmitted over the Cresco PEG access channel, including live or reproduced programs.
    
21. 
    “Other programming service” means information that a cable operator makes available to all subscribers generally.
    
22. 
    “Person” means an individual, partnership, association, joint stock company, trust, corporation or governmental entity.
    
23. 
    “Price cap” means the ceiling set by the FCC on future increases in Basic Cable Service rates regulated by the City, based on a formula using the GNP fixed weight price index, reflecting general increases in the cost of doing business and changes in overall inflation.
    
24. 
    “Public educational or governmental access channel (PEG)” means:
    

1. 
   Channel capacity designated for public educational or governmental use; and
   
2. 
   Facilities and equipment for the use of such channel capacity.
   

25. 
    “Public school” means any school at any education level operated within the City by any public, private, or parochial school system, but limited to elementary school, junior high school, and high school.
    
26. 
    “Public way” means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle or other public right-of-way, including (but not limited to) public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses, and any temporary or permanent fixtures or improvements located thereon, now or hereafter held by the franchising authority in the service area, which shall entitle the franchising authority and the franchisee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. Public way also means any easement now or hereafter held by the franchising authority within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and includes other easements or rights-of-way as shall, within their proper use and meaning, entitle the franchising authority and the franchisee to the use thereof for the purposes of installing and operating the franchisee’s cable system over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the cable system.
    
27. 
    “Reasonable notice” means written notice addressed to the franchisee at its principal office of the City or such other office as the franchisee has designated to the City as the address to which notice should be transmitted to it, which notice shall be certified and postmarked not less than four (4) days prior to that day on which the party giving such notice shall commence any action that requires the giving of notice. In computing said four (4) days, Saturdays, Sundays, and holidays recognized by the City shall be excluded.
    
28. 
    “Reasonable order” means written order not excessive or extreme as to costs or time to comply, governed by sound thinking.
    
29. 
    “Reasonable rate standard” means a per-channel rate that is at, or below, the benchmark or price cap level.
    
30. 
    “Service area” means the present municipal boundaries of the franchising authority, and shall include any additions thereto by annexation or other legal means.
    
31. 
    “Service tier” means a category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator.
    
32. 
    “Subscriber” means a person or user of the cable system who lawfully receives communications and other services therefrom with the franchisee’s express permission.
    
33. 
    “Superstation” means any non-local broadcast signal secondarily transmitted by satellite.
    
34. 
    “Video programming” means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
    

115.03 COMPLIANCE BY CITY WITH FCC RULES AND REGULATIONS. This chapter shall be amended where necessary to conform to all amendments to Part 76 of the Rules and Regulations of the Federal Communications Commission within twelve (12) months of the order of such amendments.

115.04 VIOLATIONS AGAINST FRANCHISE.

1. 
   It is unlawful for any person without the express consent of the franchisee to make any connection, extension, or division, whether physically, acoustically, inductively, electronically, or otherwise, with or to any segment of a franchised BTN for any purpose whatsoever, except as provided for herein.
   
2. 
   It is unlawful for any person to willfully interfere, tamper, remove, obstruct, or damage any part, segment, or content of a franchised BTN for any purpose whatsoever.
   

115.05 FRANCHISE REQUIRED. No person shall construct, install, maintain, or operate on or within any street, any equipment or facilities for the distribution of television signals or radio signals or data, either analog or digital, over a BTN to any subscriber unless a franchise authorizing the use of the streets has first been obtained pursuant to the provision of this chapter and thereafter only while said person is legally operating under the terms and provisions of said franchise.

115.06 ELECTION AND COSTS. In order for a nonexclusive franchise to be granted pursuant to this chapter, election must be held and a majority of those voting must vote in favor of the granting of such franchise. The entire cost of the election together with all printing and publishing costs relating thereto shall be prepaid by the applicant selected by the Council to be franchisee, regardless of whether or not the applicant is granted a franchise by said election. When the actual costs of the election are known, the final payment may be adjusted accordingly. This section shall only apply when an election is otherwise required to be held by State and/or Federal law.

115.07 RENEWAL. The City shall have no obligation to renew any franchise granted hereunder except as may be required by Federal or State law. The failure to reissue such a franchise, however, shall not prohibit the franchisee from applying for a new franchise in competition with other applicants for a franchise in the event the City decides to consider proposals from new applicants for the franchise.

115.08 FRANCHISE FEE PAYMENT.

1. 
   The franchisee shall pay to the franchising authority a franchise fee equal to five percent (5%) of gross revenues (as both are defined in Section 115.02 of this chapter) received by the franchisee from the operation of the cable system on a quarterly basis. Such payment shall be in addition to any other payment, charges, or fees owed to the City by the franchisee and shall not be construed as payment in lieu of personal or real property taxes levied by State, County or local authorities. For the purpose of this section, the 12-month period applicable under the franchise for the computation of the franchise fee shall be a calendar year, unless otherwise agreed to in writing by the franchising authority and the franchisee. The franchise fee payment shall be due and payable sixty (60) days after the close of the preceding quarterly period. Each payment shall be accompanied by a detailed report from a representative of the franchisee itemizing the basis for the computation.
   
2. 
   The annual franchise fee payment percentage designated in this section may be amended no more than once every calendar year upon mutual agreement between the City and the franchisee. Any such amendment shall be consistent with the applicable rules of the FCC and other regulatory agencies. No amendment of the franchise fee payment percentage shall be effective sooner than six (6) months from the date of notice to the franchisee of the amended percentage amount.
   
3. 
   In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, the franchisee shall pay as additional consideration:
   

1. 
   An interest charge computed from such due date, at the annual rate of nine percent (9%); plus
   
2. 
   A sum of money equal to two percent (2%) of the amount due in order to defray those additional expenses and costs incurred by the City by reason of the delinquent payment; provided, however, this paragraph shall not apply if the underpayment equals less than five percent (5%) of the total amount due.
   

4. 
   The period of limitation for recovery of any franchise fee payable hereunder shall be ten (10) years from the date on which payment by the franchisee is due. Unless within 10 years from and after such payment due date the franchising authority initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, such recovery shall be barred and the franchising authority shall be stopped from asserting any claims whatsoever against the franchisee relating to any such alleged deficiencies.
   
5. 
   No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the franchisee. In the event of a dispute, the City, if it so requests, shall be furnished a statement of said payment, by a certified public accountant, reflecting the total amounts of annual gross revenues for the period(s) covered by the payment.
   

115.09 NATURE OF NONEXCLUSIVE FRANCHISE. Any franchise granted hereunder shall not be exclusive and the City reserves the right to grant a similar franchise to any other person at any time.

115.10 FRANCHISE ORDINANCE. In addition to those matters required to be included by virtue of this chapter, the franchise ordinance shall contain such further conditions or provisions as may be included in the franchisee’s proposal negotiated between the City and the franchisee.

115.11 ACCEPTANCE AND EFFECTIVE DATE.

1. 
   No franchise agreement or renewal passed by the City Council and, when required by law, approved by a vote of the qualified electors, shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk, duly executed by the proper officers of the franchise.
   
2. 
   The written acceptance shall be filed by the franchisee not later than 12:01 p.m. of the sixtieth day following passage by the City Council or, when required by law, the franchise election granting such franchise, whichever is later. In default of the filing of such written acceptance as herein required, the franchisee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the franchisee shall not be received by the City Clerk. The franchisee shall have no rights, remedies, or redress unless and until the Council, by resolution, shall determine that such acceptance be received, which determination shall not be unreasonably withheld, and then upon such terms and conditions as the Council and the franchisee may agree.
   
3. 
   In addition to the written acceptance and within the same 60-day period, the franchisee shall:
   

1. 
   File a certificate of insurance as provided herein; and
   
2. 
   File a performance bond as provided herein unless such bond requirement has been waived by the Council; and
   
3. 
   Advise the City in writing of the franchisee’s address for mail and official notifications from the City; and
   
4. 
   Provide information necessary to establish that the franchise election and adjusted costs have been paid, when required; and
   
5. 
   Unless otherwise prohibited by law, such as in the case of a franchise renewal, reimburse the City for its franchising expense in an amount as determined by the City. Said amount, however, shall be reasonable and based on direct costs incurred by the City.