Mediacom Cable Franchise Renewal
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MEMORANDUM
January 13, 2005
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Formal Cable RFRP and Supporting Documents
On September 30, 2001, the initial term of the existing cable franchise with Mediacom
expired. However, by agreement of the City and Mediacom, the terms of the current
franchise and related side agreements were extended through December 31,2004.
Negotiations have been ongoing, but an agreement has not been reached.
The 1984 Federal Cable Act governs the process and criteria by which the City must
evaluate and determine whether, and upon what terms, Mediacom's cable franchise will
be renewed. Known as "the formal process", the procedures, requirements and
restrictions are quite specific and unfamiliar to persons accustomed to the usual "give
and take" negotiating process by which most contracts and agreements are reached.
The Cable Act permits informal negotiations with that more familiar give and take to
proceed between the parties concurrently and as a separate track from the more
restrictive formal process. If a franchise renewal agreement is reached between the
City and Mediacom via informal negotiations, the formal process will terminate at
whatever stage it has reached, and the franchise can be renewed on the terms of the
new agreement. If an agreement cannot be reached by the informal process, the formal
process will move through its required steps to either renewal of the franchise with
Mediacom or denial.
The central instrument of the formal renewal process is the Request for Renewal
Proposal (RFRP), which is issued only to Mediacom. This is not an invitation to multiple
service providers to submit competitive proposals from which the best is chosen. Such a
procedure would not be permitted by the Cable Act in addressing the renewal of
Mediacom's franchise.
The deadline for Mediacom's response is March 21, 2005. Upon receipt of that
response the City will evaluate if Mediacom has been responsive to the City's needs.
During this period, informal negotiations will continue.
Cable Franchise Administrator Merrill Crawford is recommending approval of the RFRP
and supporting documents.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mic ael C. Van Mliligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Merrill Crawford, Cable Franchise Administrator
D~
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MEMORANDUM
January 13, 2005
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator~
SUBJECT: Formal Cable RFRP and Supporting Documents
INTRODUCTION: The purpose of this memorandum is to transmit a proposed Request
For Renewal Proposal (RFRP) with supporting documents and to recommend they be
issued to Mediacom in accordance with the formal renewal procedures of the 1984
Cable Act.
BACKGROUND: On September 30, 2001, the initial term of the existing cable
franchise with MCC Iowa LLC (Mediacom) expired. However, by agreement of the City
and Mediacom, the terms of the current franchise and related side agreements were
extended through December 31, 2004.
With the assistance of the Miller and Van Eaton law firm and consulting technical,
survey, and financial experts, the City of Dubuque has conducted a thorough
ascertainment of our community's future cable-related needs and interests, detailed
system technical audits, a franchise fee payment analysis, and informal franchise
renewal negotiations with Mediacom representatives.
A great deal of time and effort has been invested by both the City and Mediacom in
working through difficult issues and addressing the needs of a number of
constituencies, including cable subscribers, government and educational institutions,
business and industry, non-profit organizations, and others. Though tedious and
frustrating at times, the negotiators report that much progress has been made.
Nevertheless, an agreement has not yet been reached.
Formal and Informal Renewal Process Tracks:
The 1984 Cable Act governs the process and criteria by which the City must evaluate
and determine whether, and upon what terms, Mediacom's cable franchise will be
renewed. Known in practice as "the formal process", the procedures, requirements and
restrictions are quite specific and unfamiliar to persons accustomed to the usual "give
and take" negotiating process by which most contracts and agreements are reached.
The purpose of the formal renewal process of the 1984 Cable Act is not necessarily to
reach the best deal in a particular community. It is, rather, to achieve resolution; that is,
to bring the renewal process to a structured conclusion with either a renewal or a denial
-- I
of the franchise. The formal process stands as a tool for either party to use to break an
impasse or conclude an otherwise endless and fruitless period of negotiation.
In most franchise renewals, the best agreement between a community and its cable
operator is reached through a more open, informal style of negotiating, although even in
this process there are certain areas such as rates and programming in which the City
can not establish or enforce requirements. For instance, you will notice in the
documents being submitted that there is no reference to a lower priced basic cable
service package. This is because federal law does not allow the City to require this in a
franchise. Mediacom has the right and ability to implement such an option today,
without further delay, but has chosen not to offer this lower cost basic package.
The Cable Act permits informal negotiations to proceed between the parties while at
the same time proceeding with the more restrictive formal process. If a franchise
renewal agreement is reached between the City and Mediacom via informal
negotiations, the formal process will terminate at whatever stage it has reached, and the
franchise can be renewed on the terms of the new agreement. If an agreement cannot
be reached by the informal process, the formal process will move through its required
steps to either renewal or denial.
Although both processes rise from the City's ascertainment of future cable-related
needs and interests, the details of the formal and informal end products will not be
identical. It is important that elements in documents or reports from our informal
negotiations, and similar but not identical elements in the formal process documents not
be confused with one another. An agreement achieved through informal negotiations
may contain mutually-negotiated benefits and trade-offs that can not be required by the
City in the formal process.
Formal Renewal Process Documents
The central instrument of the formal renewal process is the Request For Renewal
Proposal (RFRP), which, if approved by the City Council, will be issued only to
Mediacom. This is not an invitation to other cable service providers to submit
competitive proposals from which the best is chosen. Such a procedure would not be
permitted by the Cable Act in addressing the renewal of Mediacom's franchise.
Accompanying the RFRP is a Staff Report which contains updated supporting
information regarding Dubuque's future cable-related needs, a proposed Cable
Franchise Agreement, and a proposed Cable Right of Way Ordinance. These
documents, along with the 2003 Draft Report on the Cable-Related Community Needs
Assessment Study For The City of Dubuque by CBG Communications, Inc. comprise
the primary reference materials for Mediacom to consult in preparing its proposal.
The deadline for Mediacom's response will be 5:00 p.m. March 21, 2005.
The formal process of the Cable Act then closely controls how the City must evaluate
the proposal and determine whether the franchise will be renewed.
Meanwhile, informal negotiations will continue in earnest, and if a renewal agreement is
reached by this process, the formal process will terminate.
RECOMMENDED ACTION: The Recommended Action is that the City Council adopt
the proposed Resolution approving the issuance of the Request For Renewal Proposal
(RFRP) and supporting documents to Mediacom and authorizing continuation of
information renewal negotiations.
cc: Barry Lindahl, Corporation Counsel
Randy Gehl, Public Information Officer
Cable TV Regulatory Commission
Cable Community Teleprogramming Commission
Prepared by: Merrill Crawford, Cable Franchise Administrator, City Hall Annex, 1300 Main St.
DubuQUe, IA 52001-4732
RESOLUTION NO. 28 -05
APPROVING THE ISSUANCE OF A REQUEST FOR RENEWAL PROPOSAL FOR A
CABLE TELEVISION FRANCHISE WITH MCCIOWA, L.L.C.
Whereas, MCClowa, LLC. (Mediacom) is the holder of a cable services franchise with
the City of Dubuque (City), embodied in Ordinance No. 42-81, as modified by a series of
waivers and side agreements, and acquired from TCI of Iowa, Inc. via a transfer approved by
the Dubuque City Council on June 18, 2001, which franchise expired December 31 , 2004; and
Whereas, the Cable Communications Policy Act of 1984 (the Cable Act) provides a
specific and formal process by which City and Mediacom determine whether and upon what
terms the franchise will be renewed; and
Whereas, the Cable Act also permits City and Mediacom to negotiate a franchise
renewal agreement informally and concurrently with the formal renewal process and to
terminate the formal process if an agreement is reached informally; and
Whereas, representatives of City and Mediacom have entered into good faith
negotiation of the terms and conditions for the renewal of the franchise and now report that
unresolved issues are few but that an agreement is not yet achieved; and
Whereas, the Dubuque City Council believes that it is in the best interest of City to issue
the Request For Renewal Proposal under the formal renewal process of the Cable Act and to
continue concurrently with the informal process.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA: ,
Section 1. That in accordance with the provisions of the Cable Act, the City of Dubuque
hereby approves and offers to MCClowa, LL.C. the accompanying Request For Renewal
Proposal for a cable services franchise serving the area bounded by the Dubuque corporate
boundary as may be amended by future annexation, along with supporting documents; and
Section 2. That representatives of the City are hereby authorized and encouraged to
continue informal negotiations with Mediacom to resolve outstanding issues for a franchise
renewal agreement.
Passed, approved and adopted this 17th day of January, 2005.
Terrance M. Duggan, Mayor
Attest"
Jeanne Schneider, City Clerk
Attest:
CITY OF DUBUQUE, IOWA
REQUEST FOR RENEWAL PROPOSAL FOR
CABLE TELEVISION FRANCHISE
APPLICANT'S RESPONSE TO T'HIS PROPOSAL
MUST BE RECEIVED AT THE OFFICE OF T'HE CITY CLERK,
50 WEST 13T'H STREET, DUBUQUE, IOWA 520OI
BY 5:00 P.M. CENTRAL STANDARD TIME
ON MARCH 21, 2005
I.
II.
TABLE OF CONTENTS
INTRODUCTION ...............................................................................................................1
A. Invitation to Submit Proposals................................................................................1
B. Proposals by Other Prospective Cable Operators ...................................................2
C. Principles Embodied in the Request For Renewal ProposaL..................................2
D. Format of the RFRP .................................................................................................4
E. Submission of Proposal and Adclitionallnformation ..............................................4
F. Further Information.................................................................................................5
1. Questions about the RFRP ..........................................................................5
2. Franchise Area .............................................................................................5
Evaluation of Proposals ...........................................................................................5
Relationship of Communications Ordinance and Franchise Agreement................7
REQUIREMENTS AND MODEL FOR CHANNELS, FACILITIES AND
EQUIPMENT ....................................................................................................................10
A. General Requirement.............................................................................................10
B. Specific Requirements for General System Characteristics ..................................10
C. Model: General System Characteristics................................................................ 1 0
D. Requirements: Subscriber Network .....................................................................11
E. Model: Subscriber Network .................................................................................12
1. Characteristics of the Subscriber Network Model ...................................12
2. Advantages of the Subscriber Network Model.........................................13
Requirements: Public, Educational and Governmental Access............................13
1. Capacity for PEG Access Use ....................................................................13
2. Use of PEG Channels.................................................................................l4
3. Upstream Transmission.............................................................................15
Model: Public, Educational and Governmental Access ........................................15
1. Capacity for PEG Access Use ....................................................................15
2. Support for Public Access..........................................................................16
3. Upstream Feeds .........................................................................................17
Model: Cable Drops and Outlets for Government and Educational
Facilities.................................................................................................................18
1. Drops and Service Outlets .........................................................................18
2. Terminal Equipment Upgrades .................................................................18
Requirements: I-Net .............................................................................................19
Model: I-Net..........................................................................................................19
1. I-Net ArchitectUre .....................................................................................19
2. I-Net Construction ....................................................................................21
3. I-Net Ownership and Operation ...............................................................21
Model: Improvement of Facilities and Equipment ...............................................22
Use of Equipment and Facilities............................................................................23
G.
H.
III.
F.
G.
H.
I.
].
K.
L
CONSTRUCTION TIMET ABLE AND CONSTRUCTION CONDITIONS ..................24
A.
B.
C.
IV.
D.
Areas Served. ..........................................................................................................24
Line Extension Requirements................................................................................24
Underground and Aerial Construction. ................................................................24
1. Underground and Aerial Construction .....................................................24
2. Location of Drops................................................. ......................................24
3. Abandoned Plant .......................................................................................25
4. Coordination of Trenching..................................................... ....................25
Construction Standards and Procedures...............................................................25
1. Construction Standards.............................................................................25
2. Standards for Subcontractors. ...................................................................26
3. Initial and Continuing Tests. .....................................................................26
4. Inspections during Construction...............................................................26
5. Performance Tests......................................................................................27
6. Other Construction Procedures. ...............................................................27
7. System Maintenance..................................................................................28
OTHER FRANCHISE TERMS AND REGULATORY CONDITIONS .........................28
A. Franchise Fee .........................................................................................................28
B. Enforcement and Security ......................................................................................29
C. Other Issues............................................................................................................29
APPLICATION FORMS................................................................................................................30
ii
I.
INTRODUCTION
A.
Invitation to Submit Proposals
With this document, the City of Dubuque, Iowa (the "City') invites MCC Iowa, LLC
("Applicant" or "Mediacom") to submit a renewal proposal describing the cable-related facilities,
equipment, and services that it proposes to provide in the City. 1
The City has taken a number of steps, as outlined in the accompanying Report of the
Cable Franchise Administrator: FutUre Cable-Related Community Needs and Interests of the
City of Dubuque, Iowa, and Proposed Request for Renewal Proposal to MCC Iowa, LLC ("Staff
Report") to identify futUre cable-related community needs and interests in the City. The City
has reviewed consumer satisfaction with Mediacom's cable service, and has considered the
results of cable franchise renewals in other communities. Finally, the City has taken into
account the potential technological and other changes that can occur during the term of a
typical cable television franchise.
The City seeks a proposal that (1) describes in detail what Applicant proposes to provide
during a renewal franchise term; (2) demonstrates that Applicant's proposal will satisfy
community cable-related needs and interests effectively and in a manner that will provide the
benefits of cable communications technology to residents, institutions, organizations, and
businesses in the community; and (3) shows that Applicant is financially and otherwise
qualified to hold a renewal cable franchise. The proposal will be evaluated in accordance with
the provisions of the Dubuque City Code, Chapter 44, Article IV (the "Communications
Ordinance") and applicable federal law.
This Request for Renewal Proposal ("RFRP") is part of the formal renewal process
defined by federallaw2 Applicant may also, however, submit a renewal proposal at any time,
and the City may grant or deny such proposal at any time, without completing the formal
process3 The City reserves its right to act on such an informal proposal at the City's discretion,
consistent with applicable law.
1 Section 624(b)(1) of the Cable Communications Policy Act of 1984, as amended, stipulates
that franchising authorities can establish requirements for facilities and equipment in RFPs.
However, the legislative history explains that it is the operator's responsibility to provide those
"facilities and services" that satisfy the cable-related needs and interests of the community; in
evaluating the adequacy of the proposal, the legislative history explains that the issue is whether
"the equipment, facilities, and services proposed. . . are reasonable in light of the futUre cable-
related community needs and interests, taking into account the cost of meeting such needs and
interests." H. Rep. 934, 98th Congo 2d. Sess. at 74, reprinted at 1984 US.CCA.N. 4655 (1984).
2 See 47 use § 546(a)-(g).
347 use § 546(h).
B.
Proposals by Other Prospective Cable Operators
The City is strongly committed to encouraging active competition in the multichannel
video market. Such competition could work to maximize consumer choice and provide the
benefits of market discipline to the incumbent. Thus, the City welcomes proposals by other
prospective cable operators and encourages any interested parties to contact the City at the
address on the cover page of this RFRP. Federal law, however, creates a unique set of
requirements regarding proposals for renewal of a franchise, which apply only to an incumbent
cable operator. For that reason, this RFRP is addressed specifically to Mediacom and assumes
that the applicant's system is already in operation in the City. Other prospective cable operators
may, however, find this document useful as an indication of the City's standards for cable system
franchising, as reflected within the specific context of the federal renewal rules. The City
reserves the right to issue a Request for Proposals addressed to prospective operators generally;
to provide multichannel video service itself or through a subsidiary or other agency; or to take
any other appropriate steps to promote competition, all as consistent with applicable law.
c.
Principles Embodied in the Request For Renewal Proposal
The following principles have been prominent in guiding the development of this RFRP:
1. The involvement of users of the cable communications system is essential in the
cable franchise process to assist in developing requirements and recommendations for a cable
system that will be responsive to the cable-related needs and interests of the City's residents.
To that end, as detailed in the Staff Report, the City reviewed its records compiled over the
course of the franchise term, conducted a written survey of residents, held focus groups,
gathered public comment through various other means, and interviewed City residents and
community groups to identify possible uses of a cable system for community communications.
In particular, the City commissioned a study which identified public, educational, and
governmental access needs in the City, providing a draft report in early 2003. Additional
stUdies, including a driveout of the system plant, were carried out in the last half of 2004 in
preparation for the issuance of this RFRP. All the City's findings were evaluated in light of the
state of the industry, and the experience of the City and other communities, to establish the
requirements for equipment and facilities set forth in this RFRP. Applicant should show in
detail how its proposal addresses the needs and interests determined by the City in its
ascertainment process.
2. A cable system should employ modern technology so that optimal use is made of
City rights-of-way and private property used by the cable system. The City wishes to make
effective use of the rights-of-way, and also wishes to minimize the need for repeated disruptions
of the rights-of-way, such as might occur if the system utilizes technology that is relatively high-
maintenance, or that requires substantial reconfiguration or reconstruction to respond to
changing demands. Thus, Applicant should propose a cable system that meets the existing
cable-related needs of the community, and is capable of satisfying future needs and interests as
2
they develop. In particular, Applicant's cable system should be flexibly designed so that, to the
extent possible, it will be able readily to, address future needs and interests that have not yet
developed. Accordingly, the system should be designed so that Applicant will be in a position to
take advantage of new developments in cable communications technology that will benefit
subscribers, as such technology becomes available during the term of any franchise. In
determining whether the cable-related needs and interests of the community have been met by a
proposal, the City will consider the extent to which Applicant has proposed a cable system
design that is flexible - one that can be improved as may be necessary to meet future needs with
a minimum of additional cost, difficulty, and disturbance to the public rights-of-way. Hence, for
example, the City will consider whether the upgrade plan proposed creates barriers to future
improvements to the cable system, if (for example) it is designed in such a way as to increase
costs associated with bringing the system to the state of the industry.
3. All members of the public, including individuals, civic groups, and government
and educational institutions, should have the opportunity to speak via cable. The City thus
requires Applicant to describe in detail its proposals for public, educational and governmental
("PEG") use, and to explain how it would ensure that the access channels and resources
promised will be managed in a way that ensures that the needs and interests of the community
will be met. Applicant's proposal should specifically state how each requirement, need or
interest specified in this RFRP is addressed in the proposal.
4. High-quality cable service should be available throughout the City to anyone
requesting service, on non-discriminatory terms. Because of its unique topography and the
consequent benefits to a cable operator of a "terrain-captive market," the City has historically
required that service be available to any residence or business in the City. This requirement
must be specifically addressed in the proposal.
5. With the issuance of a cable franchise, the cable operator is granted a special
right to use the public rights-of-way which is not available to all. Moreover, because of a cable
operator's continuing activity in the rights-of-way to manage and improve its system, the grant
of a cable franchise can have a substantial effect on the quality of life in the City and upon other
potential users of the rights-of-way. Therefore, the City requires a firm and enforceable
franchise agreement that adequately protects the public interest with respect to right-of-way
management.
6. The promises made in any proposal should be enforceable from both a legal and a
practical standpoint. Therefore, in evaluating the adequacy of a proposal, the City will, for
example, give little weight to promises that are phrased in a way that allows Applicant to escape
or avoid obligations. Similarly, Applicant should not seek to add to a superficially conforming
proposal other features that would render it unworkable or cause it to fail to meet the City's
needs and interests. For example, it would not suffice if Mediacom proposed to rebuild the
system, but required the City government to provide funding for the rebuild. The City reserves
the right to evaluate any proposal as a whole.
3
D.
Format of the RFRP
This RFRP is intended to satisfy all requirements of the Cable Communications Policy
Act of 1984, as amended, 47 u.S.C § 521 ct scq. This document should be construed in a manner
consistent with the applicable provisions of the Communications Ordinance and the Cable
Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act
of 1996.
Parts I and 11 of this RFRP require that Applicant's response to this RFRP propose a plan
satisfying at least the critical needs and interests identified by the City in the Staff Report.
Applicant is encouraged not only to meet but to exceed these requirements in order to ensure
that the cable-related needs and interests of the community are satisfied. Parts 1 and 11 also
describe one possible configuration of a cable system and various operational practices (the
"model") that would meet these needs and interests and thus satisfy these minimum
requirements. Part 1II includes application forms which Applicant is to use in submitting its
proposals, and identifies materials and information the City requires Applicant to provide in its
response.
An application must be responsive to, and be submitted in the format required by, this
RFRP and must include all required information. The City reserves the right to reject a
nonconforming application, or to require Applicant to provide supplemental information or an
amended proposal if the Applicant's filing does not conform to the requirements of this RFRP.
No proposal shall be considered submitted to the City until all information required by this
RFRP has been submitted. Thus, if Applicant wishes to seek any sort of special treatment for
any materials submitted as part of the proposal (for example, based on a claim that certain
information is confidential or proprietary), arrangements for such treatment must be made with
the City before the proposal is due.
E.
Submission of Proposal and Additional Information
Applicant shall submit an original and four copies of its proposal to the City Clerk on the
date and at the place indicated on the cover page of this RFRP, in accordance with the
instructions set forth in this Introduction and in Part Ill. In addition, Applicant shall provide an
Executive Summary of its proposal, which shall not exceed fifteen pages (double-spaced).
Applicant shall provide an original and four copies of the Executive Summary to the City Clerk.
In addition, Applicant shall provide one copy of its proposal in electronic form, with documents
in Adobe Acrobat or Microsoft Office format as appropriate.
Applicant shall provide to the City in writing the names, addresses and occupations of
all persons aUthorized to represent or act on behalf of the Applicant in matters pertaining to its
franchise application. This requirement shall remain in effect until Applicant's application is
accepted or rejected, or until Applicant withdraws its application.
4
Applicant will be expected to respond to any requests for additional information
concerning the proposal fully and promp~ly, in accordance with the deadlines specified in such
requests.
If the City preliminarily determines that a franchise should be granted, the terms of the
proposal will be incorporated into a franchise agreement, for acceptance by Applicant and the
City, as described below.
F.
Further Information
1.
Ouestions about the RFRP
If Applicant has questions concerning this RFRP, they should be submitted in writing
no later than fifteen days before the proposal is due, to Mr. Merrill E. Crawford, Cable Franchise
Administrator, at City Hall Annex, 1300 Main Street, Dubuque, Iowa, 52001-4732, with a copy to
Barry Lindahl, Esquire, Suite 330, Harbor View Place, 300 Main Street, Dubuque, Iowa, 52001-
6944. All responses will be issued in writing. However, Applicant must submit a response to
this RFRP by the deadline, regardless of whether the questions asked have been answered.
2.
Franchise Area
The City is issuing this RFRP for the City of Dubuque, Iowa, and all annexations thereto.
G.
Evaluation of Proposals
If Applicant responds to the request for a renewal proposal completely and by the
deadline established by the City, its response to this RFRP will be evaluated in accordance with
applicable law.
A proposal must address the community's future cable-related needs and interests, as
set forth in the Staff Report and its supporting documents. This RFRP sets forth a model (for
example, a hybrid fiber-coaxial system architecture) illustrating how a proposal might meet
those needs and interests. Applicant is not required to follow this model in every respect. Thus,
it is important not to confuse features of the model with requirements strictly speaking. If
Applicant proposes a cable system that differs from the model that the City has concluded will
satisfy the requirements in this RFRP, however, Applicant will be expected (a) to explain in
what ways its proposal differs from the model suggested by the City, (b) to explain in detail
why, and (c) to demonstrate that the Applicant's proposal will meet the needs and interests
embodied in the model equally well, providing sufficient information for the City to determine
whether the proposal will meet its requirements. In particular, but without limitation,
Applicant must show that its proposal at least equals the model in terms of the needs and
interests specified in the Staff Report, such as reliability, signal quality, upgradability. To the
extent Applicant claims that its proposal will provide functionality equal to or better than that
of the model, Applicant must provide sufficient information to permit the City to determine
5
whether that claim is cortect. To the extent Applicant's proposal would provide functionality
less than that of the model in any respect, Applicant must fully explain and justify such
decreased functionality. To the extent that Applicant claims that its proposal presents a cost
advantage over the model, Applicant must itemize such cost advantages and provide
information sufficient to demonstrate that they represent cost savings resulting from the
Applicant's proposal as a whole, as compared with the costs resulting from the model as
reasonably interpreted. (For example, comparison of drop replacement costs must take into
account the normal rate of drop replacement applicable to any scenario, detailing such costs on
an annual basis for purposes of comparison.) Further, the showing must explain under what
circumstances there would or would not be cost savings over a renewal term.
To enable the City to make a prompt and well-grounded decision, Applicant must
include with its proposal all information on which it intends to rely, and may not seek to supply
at a later date supporting information that was omitted in the proposal. Applicant must also
bear the risk that, consistent with applicable law, failure to follow the model may result in the
rejection of its proposal, if Applicant does not demonstrate to the City's satisfaction that its
proposal will meet the City's needs and interests as well as or better than would the model.
The City reserves any rights it may have, consistent with applicable law, to reject a
proposal if Applicant submits false or misleading information.
The City cautions that satisfying the requirements set forth in Parts 1 and II of this
RFRP, following the format set forth in Part Ill, and providing the required information does not
guarantee Applicant a franchise under applicable law. As Congress has pointed out, even under
the formal renewal procedures of 47 U.s.e. § 546 (a)-(g), it is Applicant's responsibility to
submit a proposal for "equipment, facilities, and services. . . [that is] reasonable in light of the
future cable-related community needs and interests, taking into account the cost.,,4 Thus, if
necessary, Applicant must go beyond the requirements set forth by the City to present a
complete proposal that, as a whole, satisfies the community's cable-related needs and interests.
In evaluating the proposal, and consistent with the above, the City will also consider
whether Applicant's proposal will in practice satisfy the future cable-related needs and interests
of the community. For example, Applicant cannot satisfy the facilities and equipment
requirements by "providing" them under conditions that may impede their use. Applicant thus
would not be deemed to have "provided" the required facilities and equipment for PEG use if
under its proposal, for example: (1) PEG use of facilities or equipment would be subordinate to
other uses; (2) there would be a charge for the use of the equipment and facilities or channels;
(3) the equipment or facilities generally would not be available for PEG use at all times; or (4)
unreasonable conditions are imposed on use of such facilities or equipment. As a general matter,
Applicant must bear the cost of meeting all needs and interests unless otherwise specifically
stated herein. In particular, and without limitation, Applicant may not charge the City, PEG
channel managers, PEG programmers or users, or any other parties for the use of PEG capacity
or any other aspect of PEG access.
4 H.R. Rep. 98-934, 74, 1984 U.S.C.c.A.N. 4655, 4711.
6
To the extent that Applicant intends to "pass through" or itemize any costs of its
proposal, the proposal should list in dwiil the projected amounts all such costs anticipated to
occur over the next franchise term, indicating the basis on which Applicant believes such costs
may be passed through to subscribers or itemized pursuant to applicable law. In particular, and
without limitation, if Applicant's proposal would reduce or remove benefits received by the
community under the curtent franchise, Applicant must provide a detailed justification of such a
reduction, based on the community's cable-related needs and interests, including any
compensating or offsetting benefits Applicant believes will accrue to subscribers and/or the
community, and must itemize any changes in Applicant's costs expected from each such change
in franchise terms or conditions.
H.
Relationship of Communications Ordinance and Franchise Agreement
As noted above, the terms of an acceptable proposal will be incorporated in a final
franchise agreement, as appropriate. The franchise agreement will include other provisions
which the City may require (consistent with applicable law), including, but not limited to,
provisions regarding the following:
1.
2.
3.
Use of public rights-of-way;
Franchise fees; and
Enforcement provisions, including performance bond requirements, requirements
for letters of credit, liquidated damages provisions, provisions for termination
and for the transfer of the system.
Additionally, any cable television franchise granted will be subject to the
Communications Ordinance, to ordinances generally applicable to all or to relevant classes of
businesses or residents, including taxing, zoning, and consumer protection ordinances which
now exist or which may be hereafter adopted, and generally to the lawful exercise of the City's
police powers and other governmental powers, as long as it does not impair the obligations of
the franchise agreement itself (ef u.S. ConstitUtion, Art. 1, § 10, cl. 1). The fact that Applicant
would have a contract with the City (if renewal were granted) does not exempt Applicant from
the normal operation of law, any more than it exempts any other party that contracts with the
City from the City's lawful exercise of its governmental authority. Thus, the City reserves its
right to amend the Communications Ordinance or to take other governmental action from time
to time, as long as such actions are not inconsistent with the provisions of the franchise
agreement.
The City is including a proposed franchise agreement as an attachment to this RFRP.
The proposed agreement is intended to serve as a model for the final franchise agreement.
Applicant is not required to address this agreement specifically in its response, but it is invited
to submit any comments it may have. If Applicant contends in its proposal that any of the terms
of the proposed franchise agreement should be changed, it should (a) identify all such terms: (b)
state whether Applicant is willing to comply with the original language if its proposed change is
not accepted; (c) explain in detail the basis for its objections; and (d) include proposed
7
substitUte language to which Applicant would be willing to agree. Any such comments and
substitUte language must be submitted at ~he same time the RFRP response is submitted.
Applicant should be aware that the City believes that one of the legal requirements for
any Applicant is that it is willing to enter into a franchise agreement that satisfies legal
requirements that the City is entitled to establish, and that an applicant is not legally qualified
for renewal if it insists on conditioning its proposal on the City's agreement to unacceptable
legal requirements. Therefore, as noted above, in each case where Applicant objects to a
provision, Applicant should dearly state whether it is willing to accept the condition in its
original form, notwithstanding the objection. A conditional response or a failure to state that
the Applicant is willing to accept the condition as is will be assumed to mean that the Applicant
is not willing to accept the condition, and Applicant's legal requirements will be evaluated
accordingly. Conversely, Applicant will be deemed to accept any term or condition of the
franchise agreement to which it raises no objection or proposes no substitute language.
8
APPLIC~TION MATERIALS
9
II. REOUIREMENTS
EQUIPMENT
AND
MODEL
FOR
CHANNELS.
FACILITIES
AND
A.
General Requirement
The Cable Act states that franchising authorities can establish requirements in an RFRP
for channels and the management of channels for PEG use5 The Cable Act also allows
franchising authorities to establish requirements in an RFRP for system facilities and
equipment, including requirements for equipment and facilities for PEG use6 The City has
identified its cable-related community needs and interests in the Staff Report.? The Applicant is
required to submit a plan for provision of facilities, equipment and channels that satisfies at
least the needs and interests identified in the Staff Report.
As described on page 5 in the Introduction, the model below illustrates how a proposal
might meet those needs and interests. Assuming it is otherwise planned and designed in
accordance with the standards of the industry, the requirements for the cable system should be
satisfied if the Applicant (a) meets the specific requirements listed and (b) include all of the
characteristics set forth in the model below.
B.
Specific Requirements for General System Characteristics
Mediacom must implement, among other things, the following requirements to meet the
City's cable-related needs and interests. These requirements are necessary to make the system
perform satisfactorily.
(1)
Compliance of physical plant with the National Electrical Code, National
Electrical Safety Code (NESC), and any other applicable standards.
(2)
Activation of plant in upstream and downstream directions to all subscribers.
c.
Model: General System Characteristics
Based on the needs and interests identified in the Staff Report, the following model is
proposed for the cable system generally, including both the subscriber network and the
institutional network ("I-Net"):
5 47 use. § 531.
647 U.S.c. § 544
? The Staff Report focuses on the needs and interests that pertain to this RFRP.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
modern design when built, utilizing an architecture that will permit additional
improvements necessary for high quality and reliable service throughout the
franchise term; .
facilities and equipment generally used in high-quality, reliable, systems of
similar design;
a system that meets or exceeds all applicable FCC technical standards;
a system that meets or exceeds all NEC, NESC, state, and other applicable codes
and requirements for physical plant construction, maintenance, and operation:
all facilities and equipment necessary to evaluate system performance for
purposes of complying with applicable technical standards;
statUs monitoring equipment that monitors the cable system's performance and,
among other things, alerts the Applicant when and where back-up power
supplies are being used;
protection against outages due to power failures of up to four hours' duration
occurring anywhere in the distribution system, with backup power supplies at
each node and amplifier and at the headend;
(8)
sufficient trucks, tools, testing equipment, monitoring devices and other
equipment and facilities and trained and skilled personnel required to enable the
Applicant to comply with each and every requirement of applicable law,
including applicable customer service requirements and including requirements
for responding to system outages;
(9)
all facilities and equipment required to properly test the system and conduct an
ongoing and active program of preventive maintenance and quality control and to
be able to quickly respond to customer complaints and resolve system problems;
(10)
design capable of interconnecting with other broadband communications
networks (including but not limited to wireless systems) at locations specified
by the City.
D.
Requirements: Subscriber Network
Mediacom must implement, among other things, the following requirements to meet the
City's cable-related needs and interests:
(1)
facilities and equipment allowing the Applicant to deliver all broadcast signals
with high signal quality, without substantial deterioration from their point of
origination;
11
(2)
(3)
(4)
facilities and equipment at the headend allowing the Applicant to transmit or
cablecast signals in substantially the form received, without substantial alteration
or deterioration. For exarllple, the headend should include equipment that will
transmit color video signals received at the headend in color, stereo audio signals
received at the headend in stereo, and a signal received with a secondary audio
track with both audio tracks. Similarly, all closed-captioned programming
retransmitted by the subscriber network shall include the closed-captioned signal
in a manner that renders that signal available to subscriber equipment used to
decode the captioning;
headend with adequate ventilation and space so that components can operate
properly, problems can be easily identified, and the components can be easily
maintained;
equipment that allows parents to lock out audio and video on any channel they
consider to contain inappropriate programming, including preview channels. In
addition, any system for ordering movies or other pay-per-view programming
should reasonably prevent children from ordering programming without parental
consent;
(5)
all facilities and equipment necessary to enable the City to determine whether
Applicant is complying with all standards for customer telephone service, as such
standards may be established or amended from time to time;
(6)
all facilities and equipment required to permit the City or its authorized
representative to use the cable system as part of an emergency alert system to
transmit (a) an audio override and (b) (if Mediacom is required by federal law to
provide this capability) a video crawl on all channels, with more detailed
information provided on a City access channel.
E.
Model: Subscriber Network
1.
Characteristics of the Subscriber Network Model
Based on the needs and interests identified in the Staff Report, the following model is
proposed for the subscriber network:
(a)
hybrid fiber-coaxial ("HFC') architecture, with fiber-optic cable
at least to the feeder, so that (assuming a single cable is used) no
more than 500 homes on the average, and no more than 700 homes
in any case, are served from any fiber node, configured with
sufficient fibers to each node so that each 500-home node could
readily be converted to a node of 150 or 200 subscribers;
(b)
Amplifier cascades not to exceed node plus four amplifiers:
12
(c)
(d)
(e)
a capacity rating of at least 750 MHz for all active components,
and a rating of at least 1 GHz for all passive components:
bidirectional activation with a clean retUrn path permitting a
curtent minimum average of approximately 512 Kbps upstream,
with a minimum signal quality for the upstream direction
including carrier-to-noise and carrier-to-interference each in
excess of 28 dB; and
facilities and equipment providing a flexible platform on which
Applicant could choose to provide new or additional services such
as video-on-demand, high definition television and telephony.
2.
Advantages of the Subscriber Network Model
(a)
(b)
(c)
(d)
(e)
Minimizes susceptibility to electrical interference through the use
of fiber-optics.
Optimizes reliability and performance by minimizing the number
of amplifiers in cascade, using fiber-optics (and hence minimizes
upstream and downstream noise).
Efficiently reuses bandwidth, both upstream and downstream,
through segmentation of the system into local nodes.
Maximizes capacity for carriage of information in the distribution
network through the use of fiber-optics.
Allows further upgrading of the system with a minimum of cost
and of additional disruption to the rights-of-way.
F.
Requirements: Public, Educational and Governmental Access
Mediacom must implement, among other things, the following requirements to meet the
City's cable-related needs and interests.
L
Capacity for PEG Access Use
(a)
Applicant shall immediately provide five (5) activated
downstream channels on the subscriber network for PEG use, as
follows:
(1)
Public access: 2
13
(b)
(c)
(d)
2.
(2)
Educational access: 2 (one for Dubuque Community
Schools, one for other educational institUtions)
City'governmental access: 1
(3)
As the amount of access programming may increase over time,
Applicant shall include reasonable trigger mechanisms for
provision of at least one additional channel for public access if the
public access channels designated above are substantially fully
utilized; at least one additional channel for educational access if
either the public school channel or the higher education channel
designated above is substantially fully utilized; and at least one
additional channel for government access if the governmental
access channel designated above is substantially fully utilized
As new technology may enable the development of new types of
PEG access communications over a franchise term, including but
not limited to on-demand and interactive communications,
Applicant shall propose flexible procedures allowing the City to
obtain additional capacity (whether or not divided into channels)
for advanced PEG uses for which the City may reasonably show it
has needs or interests in the future.
Applicant may not designate channels for PEG use that suffer from
interference or distortion. Except where the franchise agreement
provides otherwise, PEG channels should be provided as part of
basic service.
(e)
Wherever Applicant must provide facilities and equipment for
PEG use, Applicant must also provide such normal spares and
backup facilities and equipment (including, but not limited to,
spare fibers) to ensure that all access channels can operate seven
days a week, 24 hours a day.
Use of PEG Channels
(a)
The City, or the entity that manages a PEG channel, shall be able
to establish and enforce rules and procedures for use of the PEG
channels pursuant to Section 61l(d) of the Cable Act, 47 use §
531(d). The City shall have authority to resolve any disputes
regarding allocation of PEG channels.
(b)
Except as expressly permitted by federal law, Applicant may not
exercise any editorial control over the content of programming on
the designated PEG access channels (except for such
programming Applicant may produce and cablecast on those
channels on the same basis as other programmers).
14
(c)
The facilitie¡;, equipment and capacity provided for PEG use on the
subscriber network or I-Net shall be available at no charge to
users, including the City and the entity that manages the channel.
3.
Upstream Transmission
(a)
Applicant shall provide upstream transmission of each access
channel's programming from its normal origination point, as
specified by the City, to the headend so that the programming can
be transmitted on the access channel. This transmission shall be
of sufficiently high quality as to prevent any significant
deterioration of the access signal from the origination point to the
headend.
G.
Model: Public, Educational and Governmental Access
Based on the needs and interests identified in the Staff Report, the following model is
proposed to meet PEG channel and support needs.
1.
Capacity for PEG Access Use
(a)
To allow the City to obtain additional capacity for advanced PEG
uses as needed, the following approach will be used: If any video
channel reserved for PEG use is digitally compressed, the
additional capacity gained from that compression (over and above
the capacity needed to carry the original access channel) shall
continue to be controlled by the entity that manages that PEG
channel, and may be used by that entity for PEG purposes upon a
reasonable showing of need or interest in using such capacity.
(b)
Should the system carry local broadcast stations in a high
definition format, PEG channels shall also be transmitted in such a
high definition format upon request of the entity managing the
PEG channel.
(c)
To the extent that the resources that determine access to and use
of Applicant's system are not expressed solely in terms of channels
(for example, if Applicant employs on-demand delivery that relies
on storage capacity on file servers), Applicant shall upon request
provide each entity managing a PEG channel with a pro rata share
of the system's maximum capacity in such other resources,
proportional to the ratio of the original analog PEG channel to the
total count of analog channels that could be carried on the system
15
(d)
(e)
In particular, and without limitation, Mediacom must provide the
necessary me servers and other equipment to enable the public,
educationaI: and governmental entities that program the PEG
channels to store programs for random access and allow
subscribers to search for and retrieve such programs.
If the Applicant makes changes to its cable system that require
improvements to access facilities and equipment - for example,
transition to a new mode of digital transmission - Applicant shall
provide any necessary additional facilities or equipment within 30
days so that PEG facilities and equipment may be used as
intended, including, among other things, so that live and recorded
programming can be cablecast efficiently to subscribers.
2.
Support for Public Access
(a)
Applicant shall have a continuing obligation, throughout the life of
this franchise, to provide studio production facilities, production
assistance, editing, scheduling and playback, training, outreach,
management, and administrative support for users of the public
access channels. The ability to produce and show programming
on the public access channels shall be available to the public
generally on a first-come, first-served basis, and shall not require
Applicant to exercise editorial control over such use, pursuant to
47 U.S.C. § 531(e).
(b)
In addition to paying any franchise fee required under a franchise
agreement, and in addition to any amounts expended by Applicant
to comply with any other requirements (including but not limited
to construction of the I-Net as described below), Applicant shall
provide capital grants to support PEG access in the amount of two
and one-half percent (2.5%) of Applicant's gross revenues derived
from the operation of the cable system (regardless of the service
involved).
(c)
Capital grants listed above shall be paid on the same dates and in
the same manner as the franchise fee.
(d)
Applicant shall provide sufficient funding to all entities managing
PEG channels to cover completely the costs of any facilities or
equipment that may be required to implement any requirements
imposed on PEG channels by the Federal Communications
Commission, or any other agency or governmental unit, for closed-
captioning or video description.
16
3.
Upstream Feeds
(a)
(b)
The following access origination sites shall be connected by
dedicated fiber-optic upstream feeds to the headend, including
both the fiber itself and all terminal equipment necessary for
transmission of the signals for each access channel to be originated
there.
(1)
(2)
(3)
Public access stUdio (public access)
Public school central administrative office at The Forum,
2300 Chaney Road (for the Dubuque Community School
channel)
Either the master control room at Loras College, or the
public access studio, at the City's option (for the second
educational channel)
City Hall Annex (government)
(4)
The following access origination sites shall be connected by
dedicated fiber-optic upstream feeds (including both the fiber
itself and all terminal equipment necessary for transmission of the
signals) either to the City Hall Annex for retransmission to the
headend over the connection specified in § lI.G.3(a)(4), or to a
remote-controlled server at the headend, so that the City can
manage switching among program sources without need of
assistance from Applicant.
(1) County Court House
(2) Carnegie/Stout Public Library
(c)
Applicant shall ensure that programming received via the
upstream feeds is retransmitted as sent by the PEG programmer,
without changing the attributes of the signal in such a way as to
effectively degrade the output.
(d)
The upstream capacity provided as part of the institutional and
subscriber network shall include facilities and equipment
designed to ensure that at the insertion of channels into the
subscriber network at the headend, the carrier-to-noise, cartier-
to-composite-disturbances, chroma and luminance of PEG
channels are the same as or better than those of any other
channels. The facilities and equipment provided would not be
adequate if there would be more deterioration on channels set
aside for public, educational and government use than on other
channels on the cable system. Deterioration refers to any signal
problem reflected in FCC technical standards, including, but not
limited to, ghost images and other interference, distortions,
degradation of chroma and luminance, and imperfections.
17
H.
Model: Cable Drops and putlets for Government and Educational Facilities
Based on the needs and interests identified in the Staff Report, the following model is
proposed to meet community needs for cable drops and outlets for government and educational
facilities.
1.
Drops and Service Outlets
(a)
(b)
(c)
(d)
Applicant shall provide the following, free of charge, on the City's
request, to (i) all educational facilities in the City (including
primary schools, secondary schools, and institutions of higher
education), and (ii) all facilities owned or leased by the City:
(1) at least one subscriber network cable drop and outlet; and
(2) any converters, decoders, or similar equipment necessary
for the City's user equipment (such as television sets and
computers) to receive all subscriber network services at
each outlet with all capabilities or options currently
afforded by the system.
Applicant shall supply one converter, decoder, or similar item per
site.
Applicant shall ensure that all signals are provided at such outlets
with sufficient strength to supply the site (e.g, the signal must be
strong enough at a school drop that it can be further amplified to
distribute it throughout the school). Specifically, Applicant shall
ensure a signal strength of + 20 dBmv at 750 MHz at the
demarcation point and, at a minimum, insure that all FCC end-of-
line specifications are being met. If the FCC should establish a
different standard in the future governing such outlets that
achieves the same purpose as the standard herein, the FCC's
standard shall govern. The City shall be responsible for any
redistribution of signals inside the City facility.
Applicant shall charge only its direct cost of installing any
additional subscriber network drops and service outlets requested
at a school or a facility owned or leased by the City.
2.
Terminal Equipment Upgrades
Whenever necessary, or dictated by changes in Applicant's technology,
Applicant shall upgrade all converters, decoders, or similar equipment
provided pursuant to this section, in order to ensure,that the site can
receive all services offered by Applicant.
18
I.
Requirements: I-Net
Mediacom must implement, among other things, the following requirements to meet the
City's cable-related needs and interests:
an institutional network serving the entire City and capable of providing
advanced services to business (on a paying basis) and government users (without
charge);
(1)
(2)
capacity on such an institutional network designated for educational and
governmental ("E/G") use as required by the City's needs and interests.
J.
Model: I-Net
Based on the needs and interests identified in the Staff Report, the following model is
proposed to meet the community's I-Net needs.
1.
I-Net Architecture
(a)
(b)
(c)
(d)
(e)
The I-Net shall link the educational and governmental I-Net sites
listed in Exhibit C to the attached model franchise agreement.
The educational/governmental ("E/G") I- Net should be designed in
a ring/star configuration. The ring, consisting of twelve fibers,
would be run directly through the Core Sites as well as the
Mediacom headend. The star portion of the E/G I-Net shall
consist of the non-core sites, with six fibers running from each site
back to the designated ring or Core Site location. This fiber
ring/star configured network will allow for versatility and
expandability, and will provide redundancy to the Core Site
locations so as to minimize downtime due to line failures.
The I-Net shall include, without limitation, fiber to the greater
downtown and riverfront areas, Dubuque Tech Park, Dubuque
Industrial Center West, and retail and industrial zones along U.S.
Highways 151, 52 and 20, Kerper Boulevard, Chavenelle Drive, the
Northwest Arterial and Seippel, Middle, Radford and John F.
Kennedy Roads.
If existing E/G site locations change, the 1- Net shall be extended to
the new location unless the City agrees that such extension is
impractical.
The fibers provided for E/G use shall be physically separate from
those provided for business use.
19
(f)
(g)
(h)
The I-Net fiber shall be designed so that any E/G site, with
appropriate 'equipment, can transmit PEG programming upstream
to be retransmitted downstream on any of the PEG access
channels.
At each E/G site, the fiber shall be terminated on termination
equipment approved by the City, installed by Applicant in the
demarcation point specified by the City.
Because the E/G network will be used for voice communication
and for similarly critical data and video signaling, the dark fiber
must be reliable to a level comparable with that of a telephone
system, that is, 99.99% or better.
(i)
The E/G dark fiber network should be designed so that, to the
extent the fiber design places any constraints on the system, the
following conditions are satisfied:
(1)
any City-approved E/G facility may connect to the E/G 1-
Net and thereafter take advantage of the network's
capabilities;
(2)
any E/G facility on the I-Net may replace or upgrade its
interface, and thereafter take full advantage of the
network's capabilities;
(3)
sufficient capacity is available to allow E/G I-Net locations
simultaneously to use the system without meaningful
interference with their applications.
U)
In addition to the above, wherever Applicant installs fiber for the
subscriber network, it shall also install at least six spare dark
fibers (i.r., fibers ready for use in installed cables that are spliced to
termination points at each end but are not connected to
electronics, and may be activated when connected to a laser and
receiver without any further splicing or termination) for I-Net
purposes, to ensure that futUre sites can be connected with
minimal need for further disruption of the public rights-of-way,
These fibers shall be separate from any fibers utilized for the
subscriber network.
(k)
The fiber-optic plant shall be installed to industry standards and
shall meet the specifications set forth in the Attachments to the I-
Net Appendix of the model franchise agreement attached hereto.
The fiber-optic cable plant shall consist of single-mode fiber-optic
20
1- Net Construction
(a) Applicant shall complete I-Net construction and have the system
fully operational within four years after the effective date of a
renewal franchise agreement.
Applicant shall complete construction of 36% of the I-Net plant by
the end of the first year after the effective date of the franchise, an
additional 30% by the end of the second year, an additional 21 %
by the end of the third year, and the remaining 13% by the end of
the fourth year.
To ensure that the sites constructed according to this schedule can
be activated in order according to the City's priorities, the City
shall determine the order in which sites are constructed, within the
scope of the construction milestones in Section II.J.2(b).
2.
(b)
(c)
cables that meet the manufacturer's specifications, but in no case
shall it exce~d a loss of .35 dB/km at 1310 nm and .25 dB/km at 1550
nm. Splices' shall not exceed .1 dB per splice and connectors shall
not exceed .5 dB per connector pair. Applicant shall provide
documentation of activation testing. The City shall be able to
require spot testing of plant to verify compliance.
3.
I- Net Ownership and Operation
(a)
The I-Net fiber shall be owned and maintained by Applicant.
However, the City shall have a perpetual indefeasible right of use
("IRU") in those fibers connecting E/G sites.
(b)
The City reserves the right to artange for maintenance of the E/G
I-Net at Applicant's expense, if Applicant fails to maintain it in
accordance with the reliability standards specified in the franchise
agreement. Notwithstanding the foregoing, the City may require,
at its discretion, that maintenance of the fiG I-Net be performed
by a third-party provider agreed upon by the City and Applicant.
The City reserves the right to retain an independent engineer to
periodically evaluate the condition and performance of the fiG 1-
Net at Applicant's expense.
(c)
Applicant shall provide repair and/or replacement of fiber-optic
plant in the event of damage or failure. Applicant shall respond to
such damage or failure affecting fiG sites as follows:
(1) Critical Outage: Response within two hours, minimum
temporary repair completed within four hours, permanent
repair within twenty-four hours.
Major Outage: Response within two hours during normal
business hours, four hours otherwise; temporary repair
(2)
21
(3)
(4)
completed within six hours, permanent repair within two
busipess days.
Minor Outage: Response within two hours during normal
business hours, four hours otherwise; temporary repair
completed within eight hours, permanent repair within
three business days.
Service Interruption: Response within two hours during
normal business hours, eight hours otherwise; temporary
repair completed within eight hours, permanent repair
within five business days.
These categories shall be defined as follows:
(1)
(2)
(3)
(4)
Critical Outage: Loss of the backbone ring fiber link, or the
loss of service to one of the circuits feeding a critical
facility. Approximately ten to fifteen such critical circuits
will be designated by the City.
Major Outage: Total loss of service to an I-Net Site other
than one listed as critical.
Minor Outage: Loss of service on a single fiber to any I-Net
Site.
Service Interruption: Reduction in signal throughput to
the point where the signal on a circuit falls below
acceptable standards.
The City and I-Net users designated by the City shall have
exclusive use of the entire capacity of the E/G I-Net. The City
shall have authority to resolve any disputes regarding allocation of
E/G I-Net capacity.
(d)
K.
Model: Improvement of Facilities and Equipment
Based on the needs and interests identified in the Staff Report, Applicant must ensure
that its system can continue to satisfy the City's needs and interests throughout the franchise
term, despite potential technological change. The model set forth in this RFRP meets that
criterion as follows:
(a)
(b)
During the franchise term, Applicant is obliged to maintain and
improve its existing facilities in accordance with good industry
practice.
As shown in the Staff Report, the City has a strong need and
interest in a franchise term of no more than seven years to ensure
that there is in the near future an opportunity to review the
adequacy of the system and its continued ability to meet the
22
community's cable-related needs and interests, in light of changes
in technology and the market. Thus, the model assumes a
franchise term of no more than seven years. Applicant shall
specify its proposed term clearly in the proposal. If Applicant
proposes a franchise term exceeding seven years, Applicant shall
provide an "updating fund" as described in this Section ILK.
(c)
Applicant shall provide an updating fund as follows: No later
than October first of each year of the franchise term, and
continuing until the franchise is either terminated or renewed,
Applicant shall provide $400,000 for the purpose of updating the
cable system. Such monies shall not be used for operational,
repair, maintenance, replacement, or line extension purposes, but
shall be used to improve the technology and capabilities of the
existing system.
(d)
Updating monies shall be expended as agreed by the City and
Applicant, provided that on each October first, any monies on
whose expenditUre the City and Applicant have been unable to
agree since the preceding October first shall be distribUted equally
among the then basic subscribers on their statements for that
month.
(e)
Updating monies may be expended as such become available, may
be advanced on account for expenditUre, or may be invested for
later expenditure along with all interest earned thereon, as may be
agreed by the City and Applicant.
L.
Use of Equipment and Facilities
This RFRP does not seek to establish requirements for video programming or
other information services. If Applicant wishes to propose broad categories of
video programming or other services, it may do so using Form VlIl. However, the
City will not take into account any such proposals in determining whether to
grant a franchise to Applicant.
23
III.
CONSTRUCTION TIMET ABLE AND CONSTRUCTION CONDITIONS
Based on the needs and interests identified in the Staff Report, the following model is
proposed regarding construction work in the system.
A.
Areas Served.
Applicant shall make service available to all areas located within the City
B.
Line Extension Requirements.
(a)
Applicant must extend its trunk and distribution system, upon
request, to provide service to any single-family dwelling, multiple,
family dwelling, institution, agency, school, government facility,
and business establishment within the corporate limits of the City
at its standard installation charge (or, for City facilities, as
provided above).
(b)
Applicant shall cooperate with developers to ensure that cabling is
done as far as possible at the time of construction and that the
option to pre' wire new business facilities is made available for
purchase by the facilities' owners.
e.
Underground and Aerial Construction.
1.
Underground and Aerial Construction
In those areas where the transmission and distribution facilities of public
utilities providing telephone communications and electric services are
located or relocated underground, Applicant likewise shall locate or
relocate its cable system underground. All underground fiber lines and
underground coaxial trunk cables, and any underground new or
replacement wiring, including all lines and cables on public property,
must be located in ducts or conduits. New buried plant shall be capable
of location using currently-available locating devices. Without limitation,
the City shall incur no cost related to such undergrounding.
2.
Location of Drops.
Except as federal law may otherwise require, in any area where Applicant
would be entitled to install a drop above, ground, Applicant will provide
the homeowner with the option to have the drop installed underground,
but may charge the homeowner the difference between the actual cost of
24
D.
the above-ground installation and the actual cost of the underground
installation.
3.
Abandoned Plant
If Applicant abandons any cable plant (i.e., permanently deactivates and
leaves it in place), the City may require that it be removed at Applicant's
cost. For example, the City may require that large items such as
amplifiers that are no longer in use be removed from the public rights-of-
way to make room for other facilities and to remove potential safety
hazards. If Applicant wishes to leave such cable plant in place, the City
may require Applicant to show that its arrangements would be safe and
would be consistent with its other obligations (such as pole attachment
agreements) before determining whether to require removal.
4.
Coordination of Trenching.
Applicant shall cooperate with coordinating procedures adopted by the
City to ensure that as far as possible any underground work can be
completed by both parties at the same time, and that the City can install
conduit without additional disruption whenever streets are opened by
Applicant.
Construction Standards and Procedures
1.
Construction Standards.
Construction, installation, operation and maintenance of the system, and
all parts thereof, shall be performed in an orderly and workmanlike
manner. All such work shall be performed in accordance with the
following safety, construction and technical specifications, codes and
standards, as they may now exist or be amended or adopted hereafter:
(a)
Occupational Safety and Health Administration (OSHA) Safety
and Health Standards;
(b)
(c)
National Electrical Code (NEC);
National Electrical Safety Code (NESC):
(d)
National Cable Television Association Standards of Good
Engineering Practices;
(e)
Obstruction Marking and Lighting, AC 70/7460 i.e., Federal
Aviation Administration;
25
(f)
Construction, Marking and Lighting of Antenna Structures,
Federal Communications Commission Rules, Part 17;
(g)
(h)
Applicable City and state utility construction requirements; and
Iowa Department of Transportation rules and regulations.
In the event of a conflict among codes and standards, the most stringent
code or standard shall apply (except insofar as those standards, if
followed, would result in a system that could not meet requirements of
federal, state or local law). The City may ensure that work continues to
be performed in an orderly and workmanlike manner, reflecting any
changes in standards that may occur over the franchise term.
2.
Standards for Subcontractors.
All contractors or subcontractors shall be properly licensed, and each
contractor or subcontractor shall have the same obligations with respect
to its work as Applicant would have under its franchise agreement and
applicable laws, if the work were performed by Applicant. Applicant
shall be responsible for: (1) ensuring that the work of contractors and
subcontractors is performed consistent with the franchise and applicable
law; (2) all acts or omissions of contractors or subcontractors; (3)
promptly correcting acts or omissions by any contractor or subcontractor;
and (4) ensuring that all work performed by contractors or
subcontractors is performed by qualified and adequately trained
personnel.
3.
Initial and Continuing Tests.
Applicant shall perform all tests necessary to demonstrate compliance
with the construction requirements of the franchise and with any
performance standards established by applicable law or regulation. All
tests shall be conducted in accordance with federal rules and in
accordance with the most recent edition of the National Cable Television
Association's 'Recommended Practices for Measurements on Cable
Television Systems," or if no recent edition exists, such other appropriate
manual as the City may designate.
4.
Inspections during Construction.
The City may conduct inspections of construction areas and subscriber
installations to assess Applicant's compliance with the construction and
installation practices manual and design plans. Applicant shall be notified
of any violations found during the course of inspections. Applicant must
26
bring violations into compliance within the following time period after it
receives notice of tl¡e violation:
(a) for safety violations, forty-eight hours (provided that in cases of
imminent danger to life or property, Applicant must take action
immediately to remedy the violation);
for Iowa DOT violations, five days;
for other violations, thirty days.
(b)
(c)
After the specified time period, Applicant must submit a report to the
City describing the steps it has taken to bring itself into compliance.
Inspection does not relieve Applicant of its obligation to build in
compliance with all provisions of the franchise.
5.
Performance Tests.
Not later than ninety days after any new or substantially rebuilt portion
of the system is made available for service to subscribers, technical
performance tests shall be conducted by Applicant to demonstrate full
compliance with all applicable technical standards, including the FCC's
technical standards.
6.
Other Construction Procedures.
(a)
(b)
Applicant must use equipment of good and durable quality
Applicant must install all new or replacement underground
wiring, including but not limited to all lines on City property, in
conduit
(c)
Applicant must submit updated as-built system design maps to
the City within thirty days of the completion of new system
construction in any geographic area. Such maps shall be provided
both in hardcopy and in an electronic format approved by the City
that is compatible with the City's geographic information system
(GIS). The maps shall be developed on the basis of post-
construction inspection by Applicant and construction personnel
to assess compliance with system design. Any departures from
design must be indicated on the as-built maps in order to assist
the City in assessing Applicant's compliance with its obligations
under the franchise and in managing its public rights-of-way.
(d)
Applicant must promptly repair and restore, in as good a condition
as before the work causing such distUrbance was done, any and all
public rights-of-way and public or private property that are
disturbed or damaged during the construction, operation or
maintenance of the cable system. If Applicant fails to restore or
27
repair public rights-of-way or public property which have been
damaged or, disturbed within 30 days, the City may perform the
necessary 'repairs and restorations, and promptly obtain
reimbursement from Applicant's security fund.
7.
System Maintenance.
a.
Interruptions to be Minimized. Applicant shall schedule
maintenance so that activities likely to result in an interruption of
service are performed during periods of minimum subscriber use of
the system.
b.
Maintenance Practices Subject to Regulation. The City shall
review maintenance practices at regular intervals and may waive
requirements or adopt additional requirements as reasonable to
ensure proper management of the public rights-of-way.
IV.
OTHER FRANCHISE TERMS AND REGULATORY CONDITIONS
As pointed out in the Introduction to this RFRP, any renewal franchise will be embodied
in a franchise agreement based on the attached model franchise agreement. It will also be
subject to City law, which may be amended pursuant to applicable law. A renewal franchise
will thus be subject to terms and conditions other than those specifically set forth in this RFRP.
Applicant is required to meet the City's needs and interests, taking into account the cost, with
respect to such terms and conditions and to comply with all applicable federal, state, and City
law in its proposal. The City may reject any proposal which does not thus comply with
applicable law. A proposal must not award additional rights to Applicant, or impose limitations
on the City's rights or aUthority, beyond those rights and limitations embodied in the current
franchise agreement and Communications Ordinance, except as specifically modified in this
RFRP.
In particular, and without limitation, Applicant's proposal should comply with the
following model:
A.
Franchise Fee
(1)
Applicant shall pay a cable franchise fee in the amount of five percent of
gross revenues derived from the operation of the cable system, subject to
any limitations that may be imposed from time to time by federal or state
law.
(2)
Franchise fees shall be paid annually in advance, and trued up at the end
of each quarter, pursuant to the procedure set forth in Section 8.6 of the
current franchise agreement, which has worked well during the term of
that agreement.
28
B.
(3)
Franchise fee payments shall be provided with supporting information
and subject to audi~.
Enforcement and Security
(1)
(2)
(3)
Applicant shall provide a performance bond and a security deposit or
letter of credit in the same amounts specified in Sections 10.2 and 10.3 of
the current franchise agreement.
Applicant shall agree to liquidated damages providing remedies for the
violations specified in the attached model franchise agreement.
Applicant shall agree that if the balance of the bargain reached by the
parties is upset due to federal or state law, the parties shall the parties
shall negotiate in good faith to reconstitute the Agreement to restore, to
the maximum extent possible, the balance of benefits bargained for by
each party.
c.
Other Issnes
(I)
If Applicant proposes to continue using the City's West Third Street site
for a hub, Applicant shall agree to pay reasonable, nondiscriminatory
rental rates for that site.
29
APPLICATION FORMS
INSTRUCTIONS AND VERIFICATION
A
INSTRUCTIONS
All questions must be answered, and all requested information supplied in the order set
forth in the application. The application must be verified by signing and returning the
Application Form and Affidavit included in this Part V.
Applicant may use the forms provided Where that is impractical, forms of Applicant's
design may be substitUted if all requested information is clearly displayed.
Applicant should begin a new page wherever indicated. Applications shall be as concise
as possible without sacrificing clarity and completeness.
The financial pro forma information submitted must be based upon the requirements
specified in this document. If Applicant deviates from those requirements, an additional
separate pro forma (which is based on the deviations and explains their impact, in detail) must
be submitted.
Applicant must clearly differentiate between those elements of the proposal which it is
willing to include in any final franchise; those which it intends to provide through contractual
agreements with others: and those which it expects to provide, but which it is not willing to
commit to provide.
Consistent with the Cable Act, there is no requirement under this RFRP that Applicant
submit a proposal for video programming or other information services. A form is included in
this section regarding such services in the event any are proposed. If Applicant makes no such
service proposals, it may retUrn those pages blank.
30
B.
APPLICATION FOR A CABLE TELEVISION SYSTEM FRANCHISE
IN THE CITY OF DUBUQUE, IOWA
IDENTIFICATION OF APPLICANT
Name of Applicant:
Address of Applicant:
(Street)
(City, State, Zip Code)
Telephone:
(Area Code and Number)
Date:
Please provide the name and telephone number of a principal to whom inquiries should be made:
Name:
Telephone:
(Area Code and Number)
Authorized Signature:
(Name and Title)
Date:
31
e.
APPLICATION FOR A CABLE TELEVISION FRANCHISE
APPLlèANT'S AFFlDA VIT
L This application is submitted in response to the Request for Renewal Proposal
issued by the City of Dubuque, Iowa. Applicant has read and reviewed the RFRP in preparing
its response.
2. The Applicant attests that it has reviewed and checked the information presented,
as necessary to determine its accuracy, and represents that it is true, accurate and complete, as
required to ensure that the representations explicitly or implicitly made are not misleading.
3. The Applicant has reviewed applicable City law, and understands that any
commitments it has made in this application are subject thereto.
4. The Applicant recognizes that all representations are binding on it and that failure
to adhere to any such representations may result in revocation of any franchise that may be
granted as a consequence of and in reliance upon this application, or in the application of other
remedies, pursuant to applicable law.
5. The Applicant hereby gives the City permission to inquire into the legal, technical,
and financial qualifications of the Applicant by contacting any persons or organizations named
herein as references, or by any other appropriate and lawful means.
6. The undersigned has been duly authorized to make these representations on behalf
of the Applicant.
Firm Name:
Affiant's Signature:
Official Position:
Date:
Attest:
32
D.
EXECUTIVE SUMMARY OF PROPOSAL
Each Applicant should present a clear and concise narrative description of the cable television
system it proposes to provide. Please limit responses to a maximum of fifteen pages (double-
spaced).
Please cover the following subject areas:
Overview of proposal;
.
Ownership and management of system;
.
Financial commitments:
.
System design and construction;
.
Program services and other service( s) (if proposed);
.
Public, educational and governmental access;
I- Net (including network characteristics and capabilities);
.
The rates Applicant would need to charge in light of its proposal, as an indication of
the costs involved; and
.
Other.
The purpose of this section is to provide the reader with an understandable overview of the
proposal, not to discuss details which will be covered elsewhere in the application forms.
33
FORM I.
FORM LA.
1.
BACKGROUND/LEGAL t:1.UALIFICA TIONS
LEGAL OUALlFlCATIONS.
Applicant shall answer the following questions "yes" or "no." The term 'Applicant"
as used in the questions below refers to: the Applicant; its principals: any entity
which owns or controls, is owned or controlled by, or is under common ownership
with the Applicant; and any entity which is expected to control or be responsible
for, through any arrangement, the management and operation of the cable system
serving the City. The Applicant need not report any case or proceeding where final
judgment was rendered ten years or more prior to the date this RFRP was issued.
Additionally, the Applicant need not report any franchise revocation which
occurred ten years or more prior to the date this RFRP was issued.
a.
Is the Applicant authorized under Iowa law to operate a business,
including a cable television business, in the State)
b.
Does the Applicant hold all federal and state licenses required for the
operation of the system?
c.
Does federal law prohibit the Applicant from holding the franchise?
d.
Has the Applicant been found by a court or other entity of competent
jurisdiction to have violated state or federal laws or regulations regarding,
or to have engaged in acts which constitute: discrimination on the basis of
race, sex or religion or any other prohibited ground: fraud; embezzlement;
tax evasion; bribery; extortion; jury tampering; obstruction of justice (or
other misconduct affecting public or judicial officers' performance of their
official duties); false or misleading advertising; perjury; violations of laws
prohibiting anticompetitive conduct or unfair trade practices (including,
but not limited to, violations of the Sherman Act and state consumer
protection laws); or racketeering or conspiracy to commit any of the
foregoing offenses?
e.
Has the Applicant ever had a franchise or FCC license revoked for cause
where the revoked franchise or license was not reinstated)
f.
Has the Applicant ever been found by a court or other entity of competent
jurisdiction to have (1) presented misleading statements, (2) engaged in
fraudulent conduct or (3) otherwise violated applicable law?
g.
Has any local franchising authority denied a previous request for a franchise
submitted by the Applicant?
34
2.
If the answer to any of questions l(d)-(f) is "yes," the Applicant must specifically
describe the facts and circumstances concerning the acts or omissions which led to
the decisions, revocation, ór findings specified in questions l(d)-(f). It shall
identify with specificity each case, revocation, or finding which led the Applicant
to respond affirmatively to questions l(d)-(f). If the Applicant believes the acts or
omissions described in response to l(d)-(f) should not be considered in
determining whether to grant or deny it a franchise, it shall explain in detail the
basis for this contention. In reviewing the information, the City shall consider:
facts and circumstances which show that the acts or omissions are unrelated to the
consideration of the Applicant's willingness to operate a cable television system in
accordance with lawful requirements; whether the Applicant has fully corrected all
harms which flowed from the act or omission; whether the act or omission did not
involve principals of the Applicant: and whether the Applicant has taken adequate
steps to ensure that the act or omission will not recur. Particular weight will be
given to any failure to correct harms flowing from any past misconduct.
3.
If the answer to question l(g) is "yes," the Applicant shall state when the request
for a franchise was denied and under what name the Applicant submitted the
application.
35
FORM LB.
APPLICANTS HOLDINGS AND PRESENT SUBSCRIBER RATES.
1.
Please list all present holdings (franchises and systems) in which the Applicant or any
principal* owns 3 percent or more of equity interest (If additional pages are needed,
please reproduce this form). Applicant that already holds a franchise need only list (1)
systems where the franchise was renewed in the last three years; (2) systems now being
upgraded or rebuilt; and (3) systems where the franchise is scheduled to expire in the next
three years.
Location of System
Date of Most Recent
Franchise Award
Plant Miles of
System
Date First
Subscribers
Served**
Date Construction
Completed***
Percentage of
System Ownership
Held
Holder of
Controlling
Ownership Interest
Current Subscriber
Rates
Name and Address
of Local Government
Officials
Responsible for
Cable Operations
For purposes of this form, "principal' means any officer or director of Applicant, and any
person, firm, corporation, subsidiary, joint venture or other entity, that owns or controls
5 percent or more of the voting stock (or any equivalent voting interest of a partnership
or joint venture) of Applicant.
36
**
In a case of upgrade or rebuild, date first subscriber served by upgraded or rebuilt
system.
***
In case of upgrade or rebuild, date upgrade or rebuild completed.
2. Please list other investments or affiliations, direct or indirect, with any media, entertainment or
telecommunications enterprise in which the Applicant or any principal owns 3 percent or more of
equity interest.
37
FORM I.c.
FORMER FRANCHISES
The Applicant and any principal' shall 'list every community where it has received a cable
television franchise or operated a cable system without a franchise, and subsequently disposed
of all or a majority of its interest. (If additional pages are needed, please reproduce this form).
Reason and
Name of Date of Date of Franchise Manner
System Community Franchise Award Disposition of Disposition
For purposes of this form, "principal" means any officer or director of an Applicant, and any
person, firm, corporation, subsidiary, joint venture or other entity, who or which owns or
controls 3 percent or more of the voting stock (or any equivalent voting interest of a partnership
or joint venture) of an Applicant.
38
FORM II.
OWNERSHIP DISCLOSURE
FORM ILA. OWNERSHIP INFORMATION
1.
2
Organizational Structure
- Sole Proprietorship
- Partnership
- Corporation
-Joint Venture
- Unincorporated Association
- Other (explain)
Officers (if Corporation):
President
Vice President
Secretary
Treasurer
If Sole Proprietorship:
Owner
If Partnership:
General Partners
Limited Partners (if applicable)
Business Structure
a.
If the Applicant is a corporation, please list all members of the Board of
Directors, their principal affiliations and their addresses:
b.
If the Applicant is a partnership, please list all members of any governing
body or management committee, their principal affiliations and their
addresses:
39
FORM II.B. STOCK INFORMATION
Please answer the following if the Applicant is a corporation.
L
Is the Applicant a publicly held corporation as defined by the rules and regulations of the
Securities and Exchange Commission?
[ ] Yes [ ] No
2.
Srock of Corporation:
Class Vote No.
of Par per No. Shares No. Shares Shares Total No.
Stock Value Share Authorized Issued Subscribed Stockholders
3.
Does the Applicant have any other obligations or securities authorized or outstanding
which bear voting rights either absolutely or upon any contingency)
[ ] Yes [] No
1£ so, submit a statement of (a) the natUre of such securities, (b) the face or par value, (c)
the number of units authorized, (d) the number of units issued and outstanding, (e) the
number of units, if any, proposed to be issued, and (f) the conditions of contingency
upon which securities may be voted.
4.
Is the Applicant corporation directly or indirectly controlled by another corporation or
legal entity?
[ ] Yes [ ] No
1£ 'yes,' please explain.
5.
Nationality and State of Incorporation:
40
FORM H.c. OWNERSHIP DISCLOSURE
The Applicant (including all shareholders and parties with any financial interest in the
Applicant) must fully disclose all agreements and understandings with any person, firm,
group, association or corporation with respect to the Dubuque City franchise and the
Dubuque cable system. This includes agreements between local investors and national
companies. Failure to reveal such agreements will be considered withholding of pertinent
information and will be considered cause to withhold or revoke award of the franchise
Please append copies of any written agreements made regarding the ownership or control
of the proposed system In the space provided, please outline any oral agreements or
understandings regarding the ownership or control of the proposed system.
41
FORM II.D. LIMITED PARTNERSHIP'
If the Applicant is a limited partnership, please describe the structure of the partnership
and identify the general and limited partners and their principals.
42
FORM II.£.
ADDITIONAL OWNERSHIP DISCLOSURES
If, in response to Forms !l.B or 11.E, the Applicant listed other partnerships or corporations
that are owned, controlled or managed by another corporation or partnership, then
additional forms for 11.B and 11.E shall be provided for such corporations and partnerships.
The same shall be done for each partnership or corporation identified in these additional
forms and so on until the ultimate parents of all such entities are identified.
43
FORM III.
FINANCIAL QUALIFIC~ TIONS AND INFORMATION
An important element of any response to this RFRP is an adequate demonstration of
financial capability to perform. Clear, complete and documented financial information is
required for the City to determine the qualifications of the Applicant.
FORM lILA.
SYSTEM FINANCING PLAN
Please attach a detailed description of the financing plan for any cable system
construction proposed in your response to this RFRP. Indicate the source and amount of equity
capital and debt, and the terms of financing debt and equity. In describing the terms of
financing, include interest rates, collateral, guarantees, terms and conditions. Documentation
must be submitted which corroborates the commitment of funds and lists the name, address,
title and telephone number of the appropriate contact person for each organization involved in
funding debt or equity. Copies of financing agreements are to be submitted or otherwise made
available for inspection at the location indicated in the InsttUctions. Attach separate pages as
necessary.
44
FORM m.B.
(1)
(2)
APPLICANT'S FINANCiAL STATEMENTS
Please attach audited financial statements, including a statement of income, a
balance sheet and a sources and uses of funds statement, together with any notes
necessary to the understanding of the financial statements, for the last three fiscal
years for the Applicant and any controlling entities. If audited information is not
available, unaudited information is to be provided, and certified as correct by the
Applicant's Chief Financial Officer. The Applicant should provide this information
for its operations in the City and separate information for any affiliate or parent
company where necessary to understand the statement for the City system, or
where the debt, interest or other obligations or assets of such affiliate or parent
company are.in any way allocated to the City system.
For the last three calendar years, to the extent not provided in the statements
identified above, identify:
(a)
total revenues, listed separately for equipment, service charges for each tier
of service, and miscellaneous revenues. Equipment revenues are revenues
from:
(i)
equipment sales and leases to subscribers;
(ii)
installation, reconnection, and tier changing charges; and
(iii)
additional outlets.
(b)
the subscribers, listed separately, for each service tier.
(3)
Please identify the existing and expected financial obligations of the Applicant and
its financial guarantors over the next five years. Specifically identify those
obligations or expected obligations within other franchise areas.
As part of your response to this Form, please provide the historical financial data requested
above in the same format used.in your response to Form 1l1.F.
45
FORM III.e.
APPLICANT'S AUDITOR
Each Applicant shall provide the name, address, title and telephone number of an
appropriate contact person for any outside audit firm utilized by the Applicant.
46
FORM III.D.
FINANCIAL GOALS
Attach a brief narrative describing the Applicant's financial goals for this cable system. If
the system does not meet these goals, describe how the Applicant will improve financial
performance. Any discussion should include, at a minimum, operating assumptions such
as rate increases, interest rates, sources of revenue, marketing, and operational changes.
Include in the narrative your projected rate of return and the methodology used to
calculate it. Attach separate pages as necessary.
47
FORM mE.
LITIGATION
Is the Applicant or any controlling entity currently in litigation (including any matters
pending before the FCC)?
[ ] Yes
[ ] No
If yes, please describe the situation and estimate the potential financial impact on the
Applicant or the controlling entity
48
FORM IILF.
PRO FORMA FINANCIAL PROJECTIONS
The Applicant shall furnish tables following the format below and provide the requested
pro forma projections for the City for the proposed franchise term (see Form XI),
assuming a franchise for the City specified in this RFRP is awarded on August 1, 2005. If
the system's assumed revenues or expenses will reflect an allocation of assumed expenses
or revenues for some other entity, pro forma projections for such other entity should be
provided as well. The pro forma projections should include approximately the same line-
item level of detail indicated on the attached forms, but particular details of presentation
may differ if the Applicant believes that alternatives are more appropriate given its
internal accounting practices. Key assumptions supporting the projections should be
documented and submitted as notes to the pro formas.
Financial pro formas must be based upon RFRP requirements. If the application deviates
from those requirements, submit separate and additional pro formas showing the financial
impact of each difference.
Financial information required in this RFRP is needed to ensure that the City can take
costs into account in evaluating Applicant's proposal, since Applicant's ability to bear a
given cost will vary depending on Applicant's financial position. Failure to provide the
required financial data will be taken as a waiver of any objection based on cost
considerations to meeting the City's future cable-related needs and interests
49
FORM III.F.
PRO FORMA FINANCIAL PROTECTIONS
Please provide the following financial projections for each year of the proposed franchise term.
1.
SUBSCRIBERS
YEAR
1
2 [to end of terml
Households in franchise area:
total
homes passed
Beginning subscribers
Net subscriber growth
Penetration percentage
New subscriber connects
Household reconnects
Subscriber disconnects
Number of basic subscribers
Number of subscribers for other tiers
Number of premium subscribers
Number of pay-per-view units sold
Revenue per subscriber:
Basic
Other tiers
Premium
Number of subscribers for each premium service offered
Monthly rate for each premium service offered
Pay-per-view
Converterlremotes
Extra outlets
Installation
FM
Other
TOTAL
Revenue (annual $ total):
Basic
Other tiers
Premium
Pay-per<view
Converter/remotes
Extra outlets
50
Installation
FM
Advertising
Home Shopping
Other'"
TOTAL
Attach information explaining the assumptions upon which these projections are made.
'" Describe all revenues included in "other".
51
PRO FORMA FINANCIAL PROTECTIONS (continued)
2.
STATEMENT OF INCOME
YEAR
l
}, [to end of terml
Revenues
Operating Expenses
Programming
Technical &: Plant
Marketing
Administration &: General
Other Operating Expenses
TOTAL OPERATING EXPENSES
Operating Income
Less
Depreciation
Amortization
Interest on Debt to Corporate Parent
Other Interest
Other Expenses/ (Income)
Net Income Before Income Taxes
Income Taxes
Income Tax Credit
After-Tax Net Income
Attach information explaining the assumptions upon which these projections are made.
52
PRO FORMA FINANCIAL PROTECTIONS (continued)
3.
BALANCE SHEET
Current Assets
Cash
Cash Equivalents (specify)
Accounts Receivable
Inventory
Prepaid Expenses
Other (specify)
Sub'Total
Property, Plant &: Equipment
Land
Buildings
Leasehold Improvements,
Furniture, Fixtures
Cable Plant
Equipment
Other (specify)
Less Accumulated Depreciation
Sub-Total
Other Assets (specify)
TOTAL ASSETS
Current Liabilities
Accounts Payable
Accrued Liabilities
Subscriber Prepayments, Deposits
Notes Payable - Corporate Parent
Notes Payable - Other
Other (specify)
Sub-Total
YEAR
53
l
2 [to end of term]
Long-term Debt - Corporate Parent
Long-term Debt - Other
Other Liabilities (specify)
Stockholders' Equity
TOTAL LIABILITY AND EQUITY
Attach information explaining the assumptions upon which these projections are made.
54
PRO FORMA FINANCIAL PROTECTI°r:<S (continued)
4.
SOURCES AND USES OF FUNDS
YEAR
1
¿ [to end of terml
Sources of Funds
Proceeds from Issuance of New Stock
Debt - Corporate Parent
Debt - Other
Revenues
Increases in current liabilities
Other (specify)
TOTAL
Uses of Funds
Capital expenditures
Operating expenses
Less non-cash expenses (specify)
Interest payments
Income taxes (cash payments)
Debt repayments
Dividends or partner distributions
Increase in current non-cash assets
Other (specify)
TOTAL
Net change in cash
Beginning cash
Ending cash
Attach information explaining the assumptions upon which these projections are made.
55
PRO FORMA FINANCIAL PROTECTIONS (continued)
5.
ANTICIPATED CAPITAL
EXPENDITURES
YEAR
Antennas, Towers, Microwave Facilities
Headend and Hubs/Nodes
Cable Plant N Subscriber Network
Distribution Plant
Rebuild/Upgrade of DistribUtion Plant
Extensions
Replacement
Subscriber drops
Cable Plant N I-Net
Distribution Plant
Rebuild/Upgrade of Distribution Plant
Extensions
Replacement
Drops
Interface Equipment
Converters
New
Replacements
Buildings and Land
Leasehold Improvements, Furniture &: Fixtures
Program Origination
Local Origination
Access Facility
Other Access Equipment
Test Equipment, Spares, Tools
Vehicles
Data Processing Equipment
56
1
2 [to end ofterm]
Other (specify)
Capitalized Overhead
TOTAL
Attach information explaining the assumptions upon which these projections are made.
57
PRO FORMA FINANCIAL PROTECTIONs (continued)
6
DEPRECIATION SCHEDULE
YEAR 1
Antennas, Towers and Microwave Facilities
Headend and Hubs/Nodes
Cable Plant u Subscriber Network
Distribution Plant
Rebuild/Upgrade of Distribution Plant
Extensions
Replacement
Subscriber drops
Cable Plant ul-Net
Distribution Plant
Rebuild/Upgrade of Distribution Plant
Extensions
Replacement
Drops
Interfaces
Converters
New
Replacements
Buildings and Land
Leasehold Improvements, FurnitUre &: Fixtures
Program Origination
Local Origination
Access Facility
Other Access Equipment
Test Equipment, Spares, Tools
Vehicles
Data Processing Equipment
Other (specify)
58
I
3 [to end of terml
Capitalized Overhead
TOTAL
Attach information explaining the assumptions upon which these projections are made.
59
PRO FORMA FINANCIAL PROTECTIONS (continued)
7.
PROGRAMMING EXPENSES
YEAR
1
2 [to end of term)
Salaries
Payroll Taxes
Overtime
Benefits
Buildings/Rent
Maintenance
Vehicle Expense
Premium Programming Expenses
Expanded Basic Programming Expenses
Basic Programming Expenses
Royalty Payments
Program Guides
Other Programming Expenses (specify)
TOTAL
Attach information explaining the assumptions upon which these projections are made.
60
PRO FORMA FINANCIAL PROTECTIONS (continued)
8.
TECHNICAL AND PLANT OPERATIONS
YEAR
J
3 r to end ofterm]
(Include data for both the subscriber network
and the I-Net).
Salaries
Payroll Taxes
Overtime
Benefits
Contract Labor
Buildings/Rent
Maintenance
Vehicle Expense
Repairs & Maintenance
Pole Rentals
System Power
Small Tools & Test Equipment
Other Plant Expenses (specify)
TOTAL
Attach information explaining the assumptions upon which these projections are made.
61
PRO FORMA FINANCIAL PROTECTIONS (continued)
9.
MARKETING
YEAR 1
l
¿ [to end of term)
Salaries
Payroll Taxes
Overtime
Commissions
Benefits
Outside Marketing
Buildings/Rent
Maintenance
Vehicle Expense
Advertising &: Promotion
Other Marketing Expenses (specify)
TOTAL
Attach information explaining the assumptions upon which these projections are made.
62
PRO FORMA FINANCIAL PROTECTI°I;JS (continued)
10.
ADMINISTRATIVE AND GENERAL
YEAR 1
Salaries
Overtime
Payroll Taxes
Benefits
Data Processing
Buildings/Rent
Maintenance
Vehicle Expense
Utilities
Phone
Light, Heat/AC
Power
State and Local Taxes
Franchise Fee
Postage
Stationery &; Supplies
Training, Travel &; Entertainment
Professional Services
Services Purchased
Insurance
Bad Debts
License &; Permit Fees
Management Fee:
By Recipient
By Parent
63
~
~ [to end oftermJ
Corporate Allocation
Other (specify)
TOTAL
n.
OTHER OPERATING EXPENSES (specify)
Attach information explaining the assumptions upon which these projections are made.
64
PRO FORMA FINANCIAL PROTECTI0~S (continued)
12.
EMPLOYEE ESTIMATES
list by category, by title, and by year the total estimated number of employees that will be
employed to provide service in the City. If these employees will also provide service to other
franchise areas, identify these areas and the number of subscribers in each. Identify any plans to
increase the number of employees during any rebuild or upgrade of a system serving any of these
listed franchise areas.
For example:
EMPLOYEES, BY CATEGORY
YEAR
1
l
.?[toendoftermJ
Technical and Plant
Operations
Plant Manager
Trunk Technicians
Other (specify)
Administrative and General
Customer Service Representatives
Other (specify)
65
FORM IV.
GENERAL QUESTIONS REGARDING TECHNICAL
QUALIFICATIONS.
The Applicant should submit information responsive to the questions below, and such
other information as may show that the Applicant is capable of constructing and
operating a system which, consistent with the requirements of this RFRP and the Cable
Act, meets the needs and interests of the community.
FORM IVA
PREVIOUS EXPERIENCE
Has the Applicant ever operated a cable system of the type that it proposes to provide in
accordance with this RFRP? (The answer may refer to Applicant's current system in the
City if the proposal does not propose significant changes in the system.) If the answer is
'yes,' please describe that previous experience by identifying the location of the system
and a person who can answer additional questions regarding that system. If the answer is
"no," please explain why the Applicant believes it will be able to successfully operate such
a system in the City.
66
FORM IV.B.!.
MANAGEMENT OF ACCESS FACILITIES
Does the Applicant intend to directly manage the provision of access facilities, services
and equipment it proposes to provide in accordance with this RFRP? If the answer is "no,"
please identify the entity or entities that would be responsible for managing the provision
of access services, facilities or equipment: state how the Applicant will ensure that each
such entity is qualified to manage the provision of access services, facilities and
equipment; and indicate Applicant's timetable for reaching an agreement with each such
entity.
67
FORM IV.B.2.
MANAGEMENT OF ACCESS FAClLITIES/SUMMARY OF ACCESS
OPERATIONS
If the Applicant proposes to manage the provision of access facilities, equipment and
services itself, or through a designee, please state whether the Applicant or its designee
has ever directly managed the provision of access facilities, equipment or services
comparable to those it proposes to provide in the City. (If the Applicant does not propose
to manage such access facilities, the Applicant should provide a complete description of
the way in which it proposes to meet the City's needs and interests in this area and
demonstrate that this method will be at least as effective in meeting those needs and
interests as would management by the Applicant.) lf the Applicant (or its designee, as
appropriate) has managed access facilities, equipment or ,services, then the Applicant
should describe that previous experience by completing the attached forms for each of two
locations where the Applicant (or its designee) managed such facilities, services or
equipment. (The City may be used as one of those locations.) Whether or not the
Applicant or its designee has such experience, it should describe below why it believes it
(or its designee) is technically qualified to manage the access facilities, equipment or
services proposed by describing 1) the skills it believes are required to successfully manage
the access resources: and 2) how it or its designee will supply those skills. In evaluating
the response to this question and the forms which follow, the City will be attempting to
determine whether the Applicant is proposing that the access resources it intends to
provide will be managed by an entity which has been able (in cases where it has been
responsible for access) or is likely to be able to bring to bear the skills required for
successful management of access resources. lf the Applicant proposes that the City
manage access facilities and equipment directly, or through another designated entity to
be selected by the City, it need not complete these forms, although it must show that its
proposed artangement would meet the City's needs and interests at least as well as would
the model described in this RFRP.
68
FORM IY.B.2
SUMMARY OF ACCESS OPERATIONS
Please provide information regarding two different communities.
a.
Name of Community:
Access Manager:
Telephone "If:
b.
Type of Local Programming Services Provided (list only those you manage)
- P - E - G - Other (Please Describe)
c.
Number of Channels by Type Programmed
_P _E _G - CombinedP-G
- Combined E-G - Combined pcE-G
- Other (Please Describe)
d.
Number of Staff
- FullcTime - PartcTime
e.
Allocation of Above Listed Staff-Time by Type of Service Provided (ie., 2.5 for
Public Access and.5 for Local Origination)
f.
Overview of Funding Sources and Levels for the Two Most Recent Years of
Operations (Please specify)
Operating Budget
Cable Company
Government
Contributions
Grants
Other (Please List)
69
Total Operating Budget
Total Value of Produétion Equipment
g.
Programming Statistics - Two Most Recent Years Each Channel Managed (Specify years)
(1)
Channel Type
(i.e., Public Access, LO, etc.)
Channel No. on System
(a)
(b)
Total number of hours (including replays, excluding character generation)
Number of locally produced 1st run hours
(c)
Number of imported program 1st run hours
(2)
Channel Type
(i.e., Public Access, LO., etc.)
Channel No. on System
(d)
(e)
Total number of hours (including replays, excluding character generation)
Number of locally produced 1st run hours
(f)
Number of imported program 1st run hours
Please repeat on an attached sheet for each additional local programming channel
managed for the reported franchise area.
h.
Do you have information which compares the number of hours of available
equipment time to the number of hours of use by category of equipment?
- Yes _No
If yes, please provide information, as follows, for the two most recent years of
operation (Specify)
StUdio( s)
Number of studio(s)
Hours available - per stUdio for access
Hours used - per studio for access
70
Comments:
Editing
Number of editing systems
Hours available - per system for access purposes
Hours used - per system for access
Comments:
Portable - Single Camera
Number of units
Hours available - per unit for access purposes
Hours used - per unit for access
Comments:
Portable - Multiple Camera
Number of units
Hours available - per unit for access
Hours used - per unit for access
Comments:
i.
Training Services Provided
(1)
Do you provide training in video skills?
_Yes _No
(2)
If answered "yes," please provide the following information.
(a)
List Training Classes offered in the two most recent years of
operation, the length of each class, the number of sessions, the
average number of enrollees per class, and the total number of
people trained in 2002 and 2003.
71
Average II Total II of
Hours Per II of Classes Enrollees People
Class Class Offered 20 - Per Class Trained 20 -
a.
b.
Co
d.
e.
f.
g.
Please provide a copy of your most recent operating policies and procedures.
j
k
Access Users
Please estimate the number of organizations, schools, universities and
divisions of local government which have used the access programming
resources and services in the community reported upon in the two most
recent years of operation. (Specify years)
_20
20-
1.
Other Access Services
Please briefly describe other access services you provide, such as outreach,
newsletters, program promotion, etc.. and attach a copy of examples of
such services (such as a newsletter), as available and appropriate.
72
FORM V.
FORM VA
PROPOSAL FOR SYSTEM DESIGN AND CONSTRUCTION
questions or requests:
CITY. Where necessary, please attach sheets and respond to the following
1.
2.
Describe the schedule for any construction, including I-Net construction, and the
area to be served Attach as an appendix to this application a map indicating the
areas of the City in which such construction will take place in each three month
period from the beginning of construction to completion of construction. Such
map shall be provided both in hardcopy (at a scale so that the map representation
is no smaller than 500 feet per inch) and in a CAD or other electronic format
approved by the City, such as Shape File Format.
Please state whether any old cable plant to be replaced under Applicant's plans,
both underground and aerial, would be removed or abandoned in place, and
explain in detail the potential cost of such removal.
73
FORM V.B.
CONSTRUCTION OR REBUILD SCHEDULE BY AREA
Referencing census tract data, show the proposed schedule of any system construction by
census tracts.
Month Census Tract Numbers
3
6
9
12
NOTE: Month 1 begins on the date the franchise is awarded.
74
FORM V.e.
NEW CONSTRUCTION OR REBUILD SCHEDULE BY MILEAGE
Category Month 3 Month 6 Month 9 Month 12 Month 15
a. Aerial plant miles
b. Under ground plant
miles wi conduit
c. Underground plant
miles w/o conduit
d. Total plant miles
(for month
specified)
e. Cumulative plant
miles completed
(inception to date)
f. Cumulative
percentage
completed
(inception to date)
NOTE: Month 1 begins on the date the franchise is awarded.
Total Construction Period: - months from date of franchise grant.
The Applicant shall submit a large-scale map for the subscriber network and the I-Net which
identifies the locations of proposed (or current) headend facilities, hubs or nodes, antennas, and
microwave facilities Such map shall be provided both in hardcopy (at a scale so that the map
representation is no smaller than 500 feet per inch) and in a CAD or other electronic format
approved by the City, such as Shape File Format. In addition, Applicant shall submit a list of
these locations in electronic database form, compatible with Microsoft Access or ExceL
75
FORM V.D. CONSTRUCTION PRACTICES
1.
System Construction
a.
Will construction be undertaken by contractors?
[ ] Yes [ ] No
b.
If "yes:"
(1)
Have the contractors been selected? ..
[ ]Yes[ ]No
(2)
Who are the contractors)
2.
Discuss the availability of work crews and equipment to ensure compliance with
the construction schedule. Detail outstanding agreements with construction
companies or equipment suppliers. Supply copies of any commitments regarding
this particular project.
3.
List construction codes which will be followed, and the steps you will take to
comply with them.
.. Applicant must submit a copy of the draft contract to the City prior to commencing
construction.
76
4.
List or describe the standards to be followed regarding tower construction,
marking and lighting.
5.
Do you have a manual of construction practices to be followed by construction
crews?
[ ] Yes [ ] No
If "yes,' attach a copy of the manual as an appendix to this application.
6.
If so, when was your manual of construction practices last updated?
7.
Have you discussed all anticipated construction with Iowa DOT and other
utilities) If so, please identify whom you spoke with for each entity.
77
FORM V.E.
SYSTEM DESIGN AND CHANNEL CAP AClTY
The City considers system design and channel capacity to be an important part of any
application, characterizing the facilities and equipment to be provided by the Applicant.
The Applicant shall describe the design of any system it proposes to build or
operate (including but not limited to the subscriber network and I-Net) and
include, at minimum, the following information:
1.
a.
Channel capacity on the subscriber network
(1)
(2)
Downstream:
Frequency Spectrum
Channel Capacity
Channel Capacity initially activated
Type of transmission (digital, analog)
Upstream:
Frequency Spectrum
Channel Capacity
Channel Capacity initially activated
Type of transmission (digital, analog)
b.
Channel capacity on the I-Net
(1)
(2)
Number of single-mode fibers to each site (attach list)
Backbone fiber count:
Attach (i) maps showing the distribution of fiber counts in the backbone
and hubs, and (ii) logical maps showing the fiber routing from hub sites to
all user sites. Maps shall be provided both in hardcopy (at a scale so that
the map representation is no smaller than 500 feet per inch) and in a CAD
or other electronic format approved by the City.
c.
d.
e.
Proposed timetable for making additional downstream and upstream
capacity available on both the subscriber network and the I-Net.
Proposed method, channel capacity, equipment, and timetable to be used to
link access facilities and the headend and to permit routing of signals to the
subscriber network.
Proposed method, channel capacity, equipment and timetable to be used to
link public facilities to the I-Net.
78
f.
g.
Describe any additional upstream system capability from public facilities to
access facilities and/ór the headend.
Subscriber Network and I-Net Design Type:
Trunk and feeder design
Number and location of hubs or nodes
Number of fibers (from hubs to each node; from headend to hubs)
Type of fibers (e.g., 1310 of 1550 nm optimized; single-mode or multi-mode)
Number of feeders to each node
Dark fiber in plant
Number of fibers from each hub to each I-Net location
h.
Distribution system, including copper-based cable, fiber, and equipment to
be used. (Provide manufacturer, type of equipment and model number, and
physical and technical specifications, and include cable, fiber, active
electronics, and passive electronics).
i.
Use (if any) and capabilities of converters proposed, and conditions under
which converters will be made available. The Applicant should specifically
indicate whether any converters used are capable of allowing subscribers to
simultaneously receive one video signal, and record another. Include input
capabilities, (RS-32, R}ll, F-Connector, etc.), technical specifications
including noise figures, throughput (lines of resolution).
j.
Plans to operate or contract for transmission services using the following
services: common carrier; Cable Television Relay Service (CARS);
Multipoint Distribution Service (MDS); other (please specify).
k.
Plans to operate or contract for satellite earth stations, including
appropriate technical specifications (e.g., size of antenna; manufacturer of
antenna; low-noise amplifier make, model number and noise figures;
receiver make, and model number; standby power; etc.)
1.
Service level separation u tier isolation and pay isolation. Describe design
specifications for delivery of pay cable services, including methods of
security. If more than one service tier is to be provided, describe how lower
tier subscribers will be isolated from receiving upper tiers of programming.
Additionally, please explain whether converters or other terminal
equipment will be necessary to receive the basic service tier.
m.
Headend design and reception facilities, including make and model number
of antennas, signal processors, modulators, demodulators, etc., and any
plans to bring broadcast channels in over fiber or coaxial cable rather than
over the air.
79
n.
Plans for standby power at the headend, hubs/nodes, and distribution
plant. Provide the make and model number of equipment, as well as reserve
capacity. '
o.
The type of status monitoring system to be used and extent to which it is
used (converter, amplifier, node, power supplies, etc.). Provide capabilities
of the status monitoring system (noise, signal strength, voltage, power
factor, etc.). Provide the approximate number of transponders and type of
headend monitoring equipment.
p.
The Emergency Alert System proposed, including: make and model
numbers of equipment; whether the system will override all audio and
video channels or only audio channels; how the system will be activated
and from where; and how the system will be interfaced with the cable
system in the City.
q.
The type of audio leveling equipment to be used, including make, model
number, and technical specifications..
r.
The type(s) of channel blocking and security technologies that will be
employed (e.g., interdiction, traps, scrambling).
s.
Plans for two-way activation to the home, including a timetable for
activation, and equipment to be used.
t.
Expected performance characteristics of the subscriber network and the I-
Net, including, but not limited to:
i.
the specification of minimum performance standards
of voice, video and data (including maximum bit
error rate, carrier-to-noise, carrier to composite
distUrbances, hum modulation) upstream and
downstream from origination points (regardless of
whether the point of origin is the headend or some
other location); and
ii.
temperature ranges under which the subscriber
network and I-Net will be designed to operate
without substantial signal degradation; catastrophic
failure; or irreversible performance changes.
u.
Longest amplifier cascade in the system (number of amplifiers, number of
miles, type of cable/fiber).
v.
Provide design maps for the system. The system design shall be shown on
maps using standard symbology in the format of the City's tax maps, and
80
shall depict all electronic and physical features of cable plant. Such maps
shall be provided both in hardcopy (at a scale so that the map
representation is no smaller than 500 feet per inch) and in a CAD or other
electronic format approved by the City.
w.
Provide a cut-over plan which shows how the Applicant will minimize
disruption to subscribers during any construction.
x.
To the extent not already explained, any plans for interconnecting the cable
system with other broadband communications networks in the Dubuque
area. The plan should show: (1) the proposed manner in which
interconnection would be accomplished; (2) to what extent and how the
interconnect would permit transmission of information to and from the 1"
Net proposed by the Applicant and any other I-Net in the City or the
Dubuque area; and (3) to what extent and how the interconnect will
permit transmission of PEG programming to and from systems in the
Dubuque area.
81
FORM V.G.
L
PERFORMANCE TESTiNG
please describe the Applicant's testing program for the I-Net and the subscriber
network, including a summary of procedures for initial proof of performance tests,
acceptance tests, continuing tests, tests in response to subscriber complaints, and
other tests planned. Test procedures should be submitted for all parameters to be
tested.
82
FORM V.H.
1.
2
3.
SYSTEM MAINTENANCE PROCEDURES
Describe the practices and procedures proposed for routine preventive
maintenance, including the type and frequency of system inspection and testing,
and the number and qualifications of technical staff by category (headend, system,
line, etc.) and service facilities.
Attach any corporate maintenance procedures which the Applicant proposes to
follow during the franchise term.
Please describe your procedures for the provision of continuous, uninterrupted
service to subscribers during the term of the franchise, for restoration of service
should circumstances cause service interruption, and for coordination with other
utilities to restore service.
83
FORM VI.
PUBLIC, EDUCA TIONf\L AND GOVERNMENT USE
Please describe separately:
FORM VIA
PEG USE CHANNEL CAPACITY
1.
The number of forward/downstream channels to be provided, channel number and
tier assigned, and date of availability for each PEG channel proposed or, in the
alternative, the percentage of the cable system's maximum channel capacity to be
provided for PEG use and the other program delivery resources to be made
available, such as storage capacity on file servers.
2.
The spectrum space to be provided for reverse/upstream access uses, and the
manner in which the Applicant proposes to provide reverse/upstream capability
from locations specified by the City. This description should also delineate the
specific equipment to be provided which is associated with signal transmission
(i.e., modulators and demodulators).
3.
The method (e.g., fiber or coaxial cable) by which the access facilities and the
headend will be linked. The description should include the channel capacity in
both forward and reverse directions to be provided between the locations.
84
FORM VI.B.
1.
ACCESS MANAGEMENT
Describe the manner in which the Applicant proposes to cooperate and coordinate
with any third-party access management entity that would be involved in access
programming according to Applicant's proposal.
85
FORM VI.C
ACCESS FACILITY AND EQUIPMENT
1.
How much does the Applicant plan to contribute for and in support of facilities or
equipment for access (1) above and beyond any costs associated with constructing
the cable system; and (2) above and beyond the franchise fee?
2.
With respect to the current public access channels:
a.
Describe any access facility or facilities proposed by the applicant
including: location; size (square footage); proposed layout of and type of
work areas within a facility (Le., studio, control room, editing suites, office
space, etc.); availability of parking; handicapped accessibility; ability to
expand in the future, if needed; and any other information which will
clearly and concisely describe the facility or facilities proposed for any PEG
use by the Applicant.
b.
Describe any video equipment packages which the Applicant proposes to
provide for PEG purposes. The Applicant must set forth the proposed
capital equipment budget for the initial equipment package and a budget
outlining the replacement schedule for equipment during the term of the
franchise.
3.
When would the support identified above be provided?
4.
Describe the conditions under which the Applicant would agree to be bound to
provide additional channels, facilities or equipment for PEG use.
86
FORM VI.D.
ACCESS SERVICES
1.
Please describe the access services the Applicant proposes to provide. The
Applicant should separately identify each access service it proposes to provide (e.g.,
training, facilitation, outreach, etc.); who will provide the service: the staff devoted
to the service; and the times the service would be available. The description should
include any annual budget for the delivery of any access services. The Applicant
should assume any such services will be provided in addition to, and not as a part
of, the franchise fee paid to the City.
87
FORM VII.
1.
LEASED ACCESS
Please describe how the Applicant intends to comply with the leased access
requirements of the Cable Act (including the records it will keep so that
compliance can be confirmed).
88
FORM VIII.
VIDEO AND INFORMATION SERVICES
If the Applicant desires to promise'to provide certain broad categories of video and other
information services to subscribers as part of its proposal, or demonstrate the manner in
which it proposes to deliver a greater variety of programming, it should describe those
categories here.
89
FORM IX
INTERACTIVE SERVICES
If the Applicant desires to promise to provide certain broad categories of interactive cable
services to residential and business subscribers, it should describe them here.
90
FORM X
NARRATIVE SUMMARY OF RESPONSIVENESS TO LOCAL NEEDS
FORM XA.
DESCRIPTION OF PROPOSED CABLE SYSTEM
Describe in narrative form your concept of the cable system (subscriber network and 1-
Net) proposed for the City, including anticipated system development over the life of the
franchise. Describe and emphasize particularly those features which are not included in
any other section of the Request for Proposals which the Applicant desires the City to
consider in evaluating the proposal.
If the Applicant proposes to provide any other service, facility or equipment which the
Applicant may wish to contend is relevant in determining whether the Applicant's
proposal meets the cable-related needs and interests of the community, it should describe
the service, facility or equipment in complete detail: describe how it will be provided,
under what circumstances and for what charge.
Emphasis should be given to explaining why the Applicant believes its proposal is
reasonable to meet the cable-related needs and interests of the community, taking into
account the cost of meeting such needs and interests.
a.
Is the Applicant proposing to construct a system which meets or exceeds
the requirements in this RFRP¡ If not, identify each and every deviation
from the requirements and the entire reason for each deviation.
b.
Is the Applicant proposing to construct a system which conforms to the
model in this RFRP? If not, identify each and every difference from the
model and the entire reason for each difference.
91
FORM XB.
1.
2.
3.
DESCRIPTION
STRUCTURE
OF
MANAGEMENT
ORGANIZATIONAL
AND
Describe the proposed management structure, organizational structUre and
operations for the Applicant (including an organizational chart). Emphasis should
be given to the proposed method for translating local needs into corporate
decisions throughout the franchise term. Include a description of the proposed
relationship between local management and the head office or parent company, if
applicable.
Identify the supervisory personnel who will initially be responsible for maintaining
the system and describe their technical qualifications. State whether the company
will maintain the system itself or through a subcontractor. If the company, in
whole or in part, will maintain the system, describe the minimum qualifications for
each position involved in the maintenance of the system. If a subcontractor will
maintain the system, in whole or in part, name the subcontractor, and describe its
role and its qualifications.
Describe the training for all categories of employees, contractors and
subcontractors associated with the consttuction, operation or maintenance of the
cable system. The answer should describe: (a) what training is given, and what
materials are used for the training; (b) whether the training is certified by an
independent body, and if so, by whom: and (c) how the Applicant assures its
contractors and subcontractors are well-trained. Applicant should also provide a
description of the jobs contractors and subcontractors are hired to perform, or are
expected to perform during or as part of any constructionlrebuild of the system.
92
FORM XI.
FRANCHISE TERM
In the space below, the Applicant should: (1) state the franchise term it seeks: and (2)
describe why it believes the proposed franchise term is appropriate, considering expected
changes in cable technology. If the Applicant claims that the franchise term it proposes is
required for financial reasons, it should describe in detail those financial reasons, and
provide any documentation required (including, for example, financial projections and
depreciation schedules) to substantiate that claim. If the Applicant has already provided
the documentation in Form lll, it may reference that information.
93
FORM XII.
MISCELLANEOUS INFORMATION
FORM XILA.
ANALYSIS AND STUDIES OF DEMAND FOR CABLE SERVICES
The Applicant should attach copies of any analysis, evaluation or study of demand for
cable service in the City, and any analysis, evaluation or study of demand for cable services
elsewhere, which the Applicant believes is relevant to evaluating whether its proposal is
reasonable to meet the future cable-related needs and interests of the community, taking into
account the cost of meeting those needs and interests.
94
FORM XII.B.
SURVEYS
The Applicant should attach a copy of any survey of City residents, businesses or
subscribers conducted within the last three years regarding cable services, facilities
or equipment; or regarding subscriber willingness to pay for any cable service,
facility or equipment (including access services, facilities or equipment). The
Applicant should also attach any reports, analyses, stUdies or other documents
regarding such a survey.
95
FORM XII.C
IMPACT OF GRANTING FRANCHISE.
1.
The Applicant should describe the impact on the public rights-of-way of building
and operating its proposed system.
2.
The Applicant should describe the impact on the public interest of constructing or
rebuilding its cable system in the City. The Applicant should provide as much
factUal information concerning the physical and economic capacity of the existing
rights-of-way in the City as is available to it.
3.
If not already provided, please provide a description of the proposed system as
completely constructed, including an estimate of above-ground and below-ground
plant mileage and its location, and information on the availability of space on poles,
rights-of-way, easements and conduits, including, where appropriate, an estimate
of the cost of any reartangement of facilities (those of Applicant or of others)
necessary to accommodate the construction of the system. The application must
show that system construction shall not require the installation of additional
utility poles, except in areas where no poles are located and no underground utility
facilities exist.
96
FORM XII.D. COMPLIANCE
Has the Applicant been informed that it is out of compliance with any provision of an
existing franchise with the City?
- Yes _No
If the answer is "yes," will the Applicant take steps to bring itself into compliance?
- Yes _No
If the answer is "yes,' describe those steps.
97
FORM XII.E
RENEWAL PROCEDURES AND ADDITIONAL INFORMATION
Please answer the following questions.
1.
§ 546(a)1
Is the Applicant seeking franchise renewal pursuant to the provisions of 47 U.S.e.
Yes- No-
2.
If the answer to the foregoing is 'yes" and the City should decide preliminarily to
deny renewal, does the Applicant desire the City to commence administrative
proceedings under 47 USe. § 546(c)(1)?
Yes- No- Undecided-
3.
If the Applicant answered "yes' to question #-1, please provide a copy of the notice
that the Applicant filed with the City for the purpose of activating the formal
procedures of 47 USe. § 546(a) - (g). If this notice was not given during the
period that began thirty-six months and ended thirty months prior to the then'
scheduled expiration of the franchise, the Applicant should explain why it believes
it has properly activated the formal renewal procedures
Please attach any additional information necessary to respond to the RFRP.
END OF APPLICATION FORMS
98
"'.
FUTURE CABLE-RELATED
COMMUNITY NEEDS
AND INTERESTS OF
THE CITY OF DUBUQUE, IOWA
AND
PROPOSED REQUEST FOR RENEWAL PROPOSAL
TO MCC lOW A, LLC
STAFF REPORT BY
CABLE FRANCHISE ADMINISTRATOR
CITY OF DUBUQUE
January 12,2005
TABLE OF CONTENTS
Pal!:e
EXECUTIVE SUMMARY ......................'..................................................................................... 1
PART 1: BACKGROUND AND BASIS OF THE STAFF REPORT.......................................... 4
1. THE CABLE SYSTEM SERVING THE CITY................................................................ 4
A. Background..................................................................................................................... 4
B. Development of Media com's Cable System................................................................... 4
C. The Next-Generation Cable Franchise............................................................................ 5
II. THE IMPORTANCE OF FRANCHISING........................................................................ 6
III. THE STATUS OF FRANCHISE RENEWAL IN DUBUQUE..................................... 9
A. The Renewal Process Under Federal Law...................................................................... 9
B. The City's Renewal Proceedings .................................................................................. 10
PART 2: FUTURE NEEDS AND INTERESTS OF THE CITY................................................ 12
I. HOW FUTURE NEEDS AND INTERESTS WERE IDENTIFIED ............................... 12
A. The Ascertainment Process........................................................................................... 12
B. Organization of This Report .........................................................................................12
II. SYSTEM DESIGN AND CAPABILITY ISSUES ............................... ..............14
A. Mediacom's Current Cable System .............................................................................. 14
B. Condition of Mediacom's Subscriber Network............................................................ 14
C. Needs and Interests: Basic System Characteristics and "Model" System ................... 16
1. Needs and Interests: Reliability ............................................................................... 16
2. Needs and Interests: Signal Quality......................................................................... 17
3. Needs and Interests: Safety...................................................................................... 17
4. Needs and Interests: Burden on Public Rights-of-Way........................................... 17
5. Needs and Interests: Capacity .................................................................................. 18
6. Needs and Interests: Flexibility and System Improvement .....................................18
7. Needs and Interests: .Interactivity............................................................................ 19
D. Requirements and Model System Design..................................................................... 20
1. Current Cable Technology ........................................................................................ 21
2. Characteristics of the Model.....................................................................................22
3. How the Model Meets the City's Needs and Interests.............................................. 23
III. OTHER GENERAL FACILITIES AND EQUIPMENT ISSUES ............................... 25
A. Needs and Interests: Interconnection ........................................................................... 25
B. Needs and Interests: Headend Design.......................................................................... 26
C. Needs and Interests: Compatibility of System with Subscriber Equipment................ 27
D. Needs and Interests: Equipment for Parental Control of Viewing .............................. 27
E. Needs and Interests: Emergency Alert System ............................................................28
F. Needs and Interests: Equipment Required To Provide Adequate Customer Service.. 29
G. Needs and Interests: Future Upgrades in the System.................................................. 30
H. Cable System Services..................................................................................................30
IV. SYSTEM CONSTRUCTION AND EXTENSION...................................................... 31
A. Needs and Interests: Time for Completion.................................................................. 31
B. Needs and Interests: Service to Residents and Businesses ......................................... 31
C. Needs and Interests: Construction Procedures and Standards .....................................32
D. Needs and Interests: Maintenance Procedures............................................................. 33
E. Needs and Interests: Geographical1nformation System.............................................. 33
V. SUPPORT FOR PUBLIC, EDUCATIONAL AND GOVERNMENT USE ...................34
A. Channel Capacity ......................:...................................................................................35
1. Background...............................................................................................................35
2. Needs and Interests: Public and Community Access Channels............................... 35
3. Needs and Interests: Educational Access Channels................................................. 36
4. Needs and Interests: Governmental Access Channels............................................. 36
5. Summary of Access Channels .................................................................................. 37
6. General Needs and Interests Regarding Access Channels........................................ 37
B. Equipment and Facilities Support for PEG Use ........................................................... 39
1. Background...............................................................................................................39
2. Needs and Interests: Upstream Feeds ......................................................................39
3. Needs and Interests: Cable Drops and Outlets......................................................... 40
4. Needs and Interests: Video-on-Demand .................................................................. 40
5. Needs and Interests: Generally................................................................................ 41
C. Institutional Network ....................................................................................................41
1. Background............................................................................................................... 41
2. Problems and Limitations of the Current I-Net ......................................... ...........42
3. Needs and Interests: I-Net Applications .................................................................. 42
4. Model I-Net Design...................................................................................................42
5. How the Model Meets the City's Needs and Interests.............................................. 46
D. Capital Grants ................................."............................................................................47
1. Needs and Interests: Public Access Capital Grants ................................................. 47
2. Needs and Interests: Educational Access Capital Grants ........................................ 47
3. Needs and Interests: Governmental Access Capital Grants..................................... 48
4. Needs and Interests: Capital Grants Generally........................................................ 48
5. Needs and Interests: PEG Equipment and Facilities Generally............................... 49
VI. OTHER FRANCHISE TERMS AND REGULATORY CONDITIONS ....................49
A. Term ...........................................................................................................................50
B. Franchise Fees and Other Benefits ............................................................................... 50
C. Scope of Grant ..............................................................................................................51
D. Transfers .......................................................................................................................52
E. City's Exercise of Police Powers and Modification of Applicable Rules and
Ordinances ......................................................................................... .......52
F. Compliance with Applicable Laws............................................................................... 53
G. Severability ................................................................................................................... 53
H. Insurance Requirements and Indemnification .............................................................. 54
1. Liquidated Damages ..................................................................................................... 54
J. Penalties ........................................................................................................................54
K. Termination................................................................................................................... 54
L. Relationship of Remedies .............................................................................................55
M. Security Funds .............................................................................................................. 55
N. Abandonment................................................................................................................55
O. Conditions on Use of Public Rights-of-Way................................................................ 55
P. Customer Service Provisions ........................................................................................56
ii
Q. Rate Regulation.............................................................................................................56
R. Reports and Records .....................................................................................................57
S. Non-Discrimination ..................,...................................................................................57
1. Other Matters ................................................................................................................ 57
PART 3: FINANCIAL ISSUES .................................................................................................. 58
1. Financial Qualifications .................................................................................................... 58
II. Competition....................................................................................................................... 58
PART 4: MEDIACOM'S PAST PERFORMANCE; CONCLUSION ................................... ... 60
iii
EXECUTIVE SUMMARY
The City Council ("Council") must determine whether to grant renewal of the
cable television franchise held by MCt Iowa, LLC ("Mediacom").
Renewal Process. Under federallaw, the Council may deny renewal only after a
specified administrative process and based on one or more of four criteria:
.
compliance with the material terms of the existing franchise and
applicable law;
quality of service;
.
financial, legal, and technical qualifications; and
.
whether Mediacom's proposal meets the City's future cable-related needs
and interests, taking into account the cost of meeting those needs and
interests.
The City may not deny renewal based on other grounds, such as programming
quality, program packaging or rates. In addition, while the City encourages competition
in the multichannel video market, and is free to grant additional cable franchises at any
time, the City must review Mediacom's renewal proposal on its own merits, based on the
above criteria. The renewal may not be treated as a competitive bid process. At the same
time, the Staff Report and Request for Renewal Proposal are designed in such a way as to
facilitate competition in the City.
Staffs analysis of the community's cable-related needs and interests takes into
account the cost of meeting those needs and interests, to the extent possible based on the
information available. The Request for Renewal Proposal asks Mediacom to provide
financial data and further information on the costs of meeting the City's needs and
interests. Mediacom may seek to show that the cost of addressing some needs and
interests would be unreasonable. Thus, when Mediacom submits its proposal, the City
will have an opportunity to consider Mediacom's showing and reach a conclusion
regarding the costs.
Subscriber Network. The subscriber network should at a minimum equal the
performance of a hybrid fiber-coaxial architecture with 750 MHz bandwidth, with no
more than 500 homes on the average, and no more than 700 homes in any case, served
from any fiber node; two-way (bidirectional) activation; and protection against outages
due to power failures in the distribution system.
Support for Public, Educational, and Governmental (PEG) Use. As part of its
compensation for use of the City's public rights-of-way, Mediacom must provide in-kind
support for public, educational, and governmental uses of the system, over and above its
franchise fees. Such capabilities reduce the City's communications costs, which would'
otherwise fall on the City's taxpayers. In addition, they enhance citizens' ability to
communicate with City government and each other. Thus, PEG support provides significant
benefits to all City residents.
A renewal franchise must provide a total of five channels for PEG use: two for
public access, two for educational access (City schools and higher education institutions),
and one for governmental access (administered by the City), as well as reasonable trigger
mechanisms for at least one additional channel of each type (public, educational, and
governmental) if existing access channels of that type are substantially fully utilized. In
addition, Mediacom should provide adequate supporting facilities and/or funding for
PEG access. The facilities needed include dedicated upstream feeds to bring PEG
programming to the headend for distribution; cable drops and outlets at public access,
educational, and governmental sites; and video-on-demand capability for PEG access use.
Mediacom should provide effective and responsive maintenance and repair of these PEG
channels and facilities.
Institutional Network (I-Net). Mediacom must also upgrade the existing
institutional network or "I-Net," which connects institutions serving the public and carries
video, voice and data. The current I-Net is not sufficiently reliable or technically advanced
to serve the City's needs and interests. These applications increase the efficiency and
decrease the cost of local government operations, and enable access by citizens to City
records through institutional sites.
The model I-Net design requires a minimum of six single-mode fibers to each of
the sites (plus the Mediacom headend) specified in the Appendix to the model franchise
agreement which is attached to the draft RFRP. The I-Net should link the specified
locations with a bidirectional fully fiber-optic network constructed with single-mode dark
fiber, designed so that each of the locations can originate and receive video, data and
voice signals. Mediacom should propose means for achieving redundancy on this system
to as to minimize downtime due to line failure. The system should be as scalable and
flexible as possible. The City expects that the I-Net would be built as cost-effectively as
possible by using existing Mediacom resources and co-locating I-Net fiber with
subscriber network fiber whenever possible. In order to maximize flexibility in planning
the I-Net, maintain control of I-Net evolution, and take advantage of new technology as it
emerges, the City seeks this support in the form of capital grants.
Capital Grants. To allow effective use of PEG channels, Mediacom should
provide funding for facilities and equipment. Mediacom should pay capital grants in the
aggregate totaling 2.5% of gross revenues derived from the operation of the cable system
(regarclless of the service involved).
Other Franchise Terms and Regulatory Conditions. To ensure reasonable
implementation of the franchise requirements, a new franchise agreement would be
signed. Key provisions would include:
If the term exceeds seven years, the City will require an annual updating
fund - a capital funding commitment from Mediacom to improve the
system - to maintain technological currency over the franchise term
2
.
Franchise fees of five percent, currently the federal limit
.
Rights granted under the cable franchise restricted to use of the public
rights-of-way for cable 'service, consistent with federal law
.
City authority to approve or deny transfers of ownership or control
.
Preservation of City's police powers and right to legislate
.
Insurance and indemnification requirements
.
Remedies including liquidated damages, penalties, and termination of the
franchise, with funds available through a construction bond and letter of
credit or security deposit, to ensure that the City can enforce Mediacom's
obligations
Appropriate conditions on Mediacom's use of the public rights-of-way
.
Customer service requirements to require high-quality service to
subscribers
.
Reporting and open records provisions
Recommendation. Upon acceptance of this Report by the Council, the City should
issue the draft Request for Renewal Proposal, and require Mediacom to demonstrate that it
meets all the conditions set forth in this Report and the Request, taking into account the cost
of meeting the City's future cable-related needs and interests, before determining whether to
grant a renewal franchise to Mediacom.
3
PART 1: BACKGROUND AND BASIS OF THE STAFF REPORT
I.
THE CABLE SYSTEM SERVING THE CITY
A.
Background
The City of Dubuque, the seventh largest city in the state of Iowa, is an urban
community of nearly 60,000 people The City is located on the Mississippi River in
northeastern Iowa, bordering Illinois and Wisconsin. The City occupies approximately
25 square miles and is the major retail, medical, educational and employment center of a
tri-state market. The community has a stable and diversified manufacturing base and a
growing service sector. Tourism is growing markedly with the recent opening of the
$200 million first phase of the America's River Project, which includes the National
Mississippi River Museum and Aquarium.
With regard to the reception of land-based over-the-air broadcast signals,
Dubuque is a "terrain-captive" market, due to its geographic location and its lead-lined
Mississippi River bluffs. As a result, Mediacom and its eight predecessors have enjoyed
a phenomenal 88-92% penetration rate for basic cable service for nearly fifty years.
Cable television forms part of the electronic infrastructure on which a modern
community depends. The City recognized the potential of cable when it initially called
for bids to construct cable systems in the City. The importance of a modern, fully-
capable broadband network linking City residents and institutions is a major concern of
the City in determining the terms and conditions under which the franchise granted to the
City's current cable operator, MCC Iowa, LLC ("Mediacom"), may be renewed.
B.
Development of Mediacom's Cable System
The current cable franchise was granted in 1981 to the incumbent cable operator,
Teleprompter Corporation, as that company was acquired by Westinghouse (Group W
Cable). The franchise was further transferred to TCI oflowa in 1987, to AT&T in 1998,
and to Mediacom in 2001.
In 1981-82, at the beginning of the current franchise, Group W Cable rebuilt its
Dubuque infrastructure to a dual-cable coaxial system. The 300 MHz A-cable subscriber
network was configured to pass by and serve all properties within the City limits, while a
separate 400 MHz B-cable I-Net provided two-way signal transmission among
government and educational facilities. The original plan was eventually to extend the B-
cable into all properties to provide bandwidth for additional subscriber services.
However, improving technology enabled the operator to use increased bandwidth on a
single cable, and the B-cable remained a separate I-Net throughout the term of the
franchise.
4
In 1994, in return for waiver of a franchise requirement, then-franchisee TCI of
Iowa, Inc., upgraded the A-cable subscriber network to a 550 MHz hybrid fiber-coaxial
system and reconfigured portions of the B-cable I-Net to reduce the number of amplifiers
in any single cascade. In the sUl1Ímer of 2003, Mediacom upgraded the A-cable
subscriber network to 750 MHz.
The original term of the current franchise expired September 30, 2001. While
engaged in renewal negotiations with Mediacom, the City granted a series of temporary
extensions through December 31, 2004 to the franchise, a related hub site lease, and other
related agreements.
C.
The Next-Generation Cable Franchise
The City's needs and interests for its cable system over the next franchise term are
discussed in detail below. The following points, however, are of note:
.
The City should be served by a modern cable system. The system should
be able to satisfy existing cable-related needs and interests as well as those
that are foreseeable in the near future.
.
The cable system serving the City should be designed so that it is
economical to upgrade the system periodically, so that City residents can
take advantage of improvements in technology.
.
Service should be available to all residents throughout the City.
.
City residents should receive prompt, efficient, and reliable service. Thus,
any cable franchise should be subject to conditions that protect consumers.
Cable systems should be interconnected with each other and with other
communications systems so that video, data and voice can flow freely
throughout the City and to and from surrounding jurisdictions. The City
requires an integrated broadband network capable of supporting a variety
of functions simultaneously and of working together with other systems of
different kinds.
.
Facilities and equipment should be provided so that all members of the
public, including groups and individuals who generally have not had
access to electronic media, will have the "opportunity to become sources
of information in the electronic marketplace of ideas." 1
.
City PEG access users should be fully supported so that their work can be
continued and expanded over the next franchise term.
1 H. Rep. No. 934, 98th Congo 2d Sess. at 30, reprinted in 1984 U.S.C.C.A.N.
4655,4667 (1984) ("1984 House Report").
5
As capacity and system capabilities expand, public uses should be
expanded as well. For example, as the system expands its video-on-
demand offerings, Me.diacom should also provide the equipment and
facilities that allow subscribers to obtain information on demand from
public institutions, such as video instructions on voting or schedules of
local events.
The City single-cable coaxial I-Net should be upgraded.
This brief list is by no means exclusive, and the full discussion below should be consulted
for a complete discussion of the City's needs and interests. The above points, however,
show that the City must ensure that Mediacom's system meets robust requirements for
the next franchise term. The means by which the City must achieve this end is the
franchising process.
II.
THE IMPORTANCE OF FRANCHISING
Cable systems originally served merely to retransmit broadcast television signals.
By the 1990s they had become, in the words of Congress, "a dominant nationwide video
medium.,,2 Four years into the third millennium, with the emergence of cable as the
dominant provider of high-speed access to the Internet, cable systems have become an
indispensable gateway into the infonnation age3 This development is changing the way
people live, work, and interact with each other by providing citizens access to vast
quantities of information, services and entertainment in a variety of fonns. As a result, a
local government has a compelling interest in ensuring that a cable system is adequately
designed and constructed to help satisfy the community's cable-related needs and
interests; that good service is provided at a fair price; that services are available to all;
and that the flow of information is not monopolized by the company that owns the cable
network. These interests are reflected in federal, state and locallaw4
These interests are particularly strong because, in order to operate, cable systems
must occupy scarce and valuable public property - property that the public effectively
pays to acquire and maintain. Mediacom's cable runs in streets and rights-of-way
administered by the City, on property that belongs to the community. The City has a
compelling interest in ensuring that Mediacom uses this public property in a way that
benefits the entire community. This means, among other things, that the City must
2 H. Rep. No. 862, 102d Congo 2d Sess. at 52, reprinted in 1992 U.S.C.c.A.N.
1231,1232 (1992).
3 For example, see Residential Survey Markup, Attachment A to the CBG Report,
p. - ("Survey Markup").
4 For federal law, see, e.g., 47 U.S.c. §§ 544 (requiring facilities and equipment);
546(c)(1)(D) (satisfying community's cable-related needs and interests); 543 (ensuring
reasonable rates); 541(a)(3) (anti-redlining); 531 (access channels).
6
ensure that the property is used in optimal ways, and that the public receives fair
compensation - in the form of franchise fees and other conditions - for the use of its
public property.
The City, as a matter of public policy, encourages competition in the market for
multichannel video services. But a fully competitive market has not yet developed.
Despite the City's openness to new entrants, and the attempts of Congress to open up
competitive markets, the City is still served by only one wireline cable system:
Mediacom's. While direct broadcast satellite systems (DBS) have made inroads over the
past seven years as alternate means by which some City residents receive multichannel
video, these systems do not provide true competition to traditional wireline cable.
Empirical studies confirm the City's direct experience: DBS "competition" alone does
not significantly restrain cable rates or promote improved customer service (although it
may lead to expanded channel offerings)5 Moreover, the position of DBS as a potential
competitor is likely to worsen, not improve, as cable operators move to offer telephone
service as well as high-speed Internet access - neither of which can readily be duplicated
by satellite providers - as part of a bargain-priced bundle of services with multichannel
video.
For this reason, the City must be especially careful to ensure that the cable system
continues to serve the public interest and that Mediacom does not use its market power in
inappropriate ways. For example, the City has a particular interest in ensuring that
Mediacom does not use its special access to the public rights-of-way to exercise control,
whether overt or covert, over the information available to many members of the
community. Such control would threaten the concerns that underlie the First
Amendment. Thus, the City has, among other things, made provision for access by
5 See, e.g., United States General Accounting Office, Telecommunications: Wire-
Based Competition Benefited Consumers in Selected Markets, Report to the
Subcommittee on Antitrust, Competition Policy and Consumer Rights, Committee on the
Judiciary, U.S. Senate, GAO 04-241 (February 2004); United States General Accounting
Office, Telecommunications: Issues Related to Competition and Subscriber Rates in the
Cable Television Industry, Report to the Chairman, Committee on Commerce, Science,
and Transportation, U.S. Senate, GAO-04-8 (Oct. 24, 2003). United States General
Accounting Office, Telecommunications: Data Gathering Weaknesses in FCC's Survey
of Information on Factors Underlying Cable Rate Changes, Testimony Before the
Committee on Commerce, Science and Transportation, U.S. Senate, GAO-03-742T (May
6, 2003). United States General Accounting Office, Telecommunications: Issues in
Providing Cable and Satellite Television Services, Report to the Subcommittee on
Antitrust, Competition, and Business and Consumer Rights, Committee on the Judiciary,
u.S. Senate, GAO-03-130 (Oct. 15,2002); In the Matter of Annual Assessment of the
Status of Competition in the Market for the Delivery of Video Programming, Tenth
Annua/ Report, MB Docket No. 03-172, FCC 04-5, ~ II (Jan. 28, 2004); Testimony of
Gene Kimmelman on behalf of Consumers Union and Consumer Federation of America
before the Senate Committee on Commerce, Science and Transportation on Escalating
Cable Rates: Causes and Solutions (March 25, 2004).
7
parties other than Mediacom to communicate over the cable system through public,
educational, and governmental access arrangements. These arrangements help to bridge
the "digital divide" between information "haves" and "have-nots," As the National
Telecommunications and Information 'Administration (NTIA) noted as far back as 1993,
"[b]ecause information means empowerment - and employment - government has a
duty to ensure that all Americans have access to the resources and job creation potential
of the Information Age",6
These and other interests are protected, in part, through the franchising process
that is established by state and local law, acknowledged and qualified by federal law. For
example, during renewal proceedings a community is permitted to establish basic
requirements for system performance, and to require that operators provide facilities and
equipment and set aside channels for public, educational and government use. Thus, the
legislative history of the Cable Communications Policy Act of 1984,47 U.S.c. § 521 et
seq. ("Cable Act"), explained:
The ability of a local government entity to require particular cable
facilities (and to enforce requirements in the franchise to provide those
facilities) is essential if cable systems are to be tailored to the needs of
each community and [the legislation] explicitly grants this power to the
franchising authority7
Thus, the franchise renewal process is of great importance to the community8 The City
is responsible for protecting the interests of cable subscribers and the general public
through the franchising process by identifying future cable-related needs and interests,
and translating those needs and interests into franchise requirements, taking into account
the cost of meeting such needs and interests.
6 National Telecommunications and Information Administration, The National
Information Infrastructure: Agenda for Action at 1 (September 1993) ("NTIA
Information Infrastructure Report").
7 1984 House Report at 26, 1984 U,S,C.C.A.N. at 4663.
8 Congress intended that:
the franchise process take place at the local level where [local] officials
have the best understanding of local communications needs and can require cable
operators to tailor the cable system to meet those needs.
1984 House Report at 24,1984 US.C.C,A,N. at 4661. However, the Cable Act does not
give local governments unlimited authority to impose conditions on cable operators, For
example, it limits local authority to require an operator to carry a specific programming
service.
8
III.
THE STATUS OF FRANCHISE RENEWAL IN DUBUOUE
A.
The Renewal Process Under Federal Law
The process for renewing franchises is controlled by federal and local law, The
Cable Act establishes two ways for a local franchising authority to arrive at a renewal
decision: the formal and the informal processes.9 Under the informal process, the City
and Mediacom may agree on a renewal franchise at any time through informal
negotiations. To do this, the City must first determine what the community needs from
its cable system over the next franchise period.
Under the formal process, on the other hand, the City conducts an ascertainment
process to develop facts about the cable operator's past performance and the
community's future cable-related needs and interests. Once the City completes the
ascertainment process, it issues a request for renewal proposal to the company. When
Mediacom submits its proposal for renewal, the City has four months to decide whether
to agree to that proposal or to issue a preliminary denial of renewal. If the City issues a
preliminary denial, it must begin a formal administrative proceeding to consider whether
the franchise should be renewed. At the end of the administrative proceeding, the City
issues a written decision granting or denying the renewal proposal, based on the record
and stating its reasons, Mediacom may appeal the City's decision in state or federal
court.
Under the formal process, if the Council were to deny renewal, that denial must be
based on one or more of four criteria, Two of these are historical, focused on past
performance. The other two are forward-looking, focused on future needs, The four
criteria are:
.
Compliance: whether Mediacom has substantially complied with the material
terms of the existing franchise and applicable law,
.
Quality of Service: Mediacom's past performance on such factors as signal
quality, response to consumer complaints, and billing practices (but not the
particular mix or quality of programming or the rates charged),
.
Financial, Legal, and Technical Qualifications: the necessary ability in
each of these areas to do what Mediacom offers in its proposal.
.
Community Needs and Interests: whether Mediacom's proposal meets the
City's future cable-related needs and interests, taking into account the cost of
meeting those needs and interests.lo
9 See 47 U,S.C, § 546.
10 See 47 U.S,C. § 546(c)(1)(A)-(D).
9
These criteria do not include considerations such as programming selection or rate
levels. In fact, federal law limits the authority of local communities to regulate rates and
cable services. II Thus, a community may not deny renewal under the formal Cable Act
process on those grounds. .
These conditions control whether the Council can grant or deny renewal to
Mediacom, That decision is independent of whether another company might offer a
better agreement. Thus, while the City is free to invite other cable companies to compete
at any time, under the federallaw, its decision of Mediacom's renewal is separate from
any decision to grant a different company another franchise.
B.
The City's Renewal Proceedings
Mediacom has asked the City to renew its franchise.12 The City must consider
whether to renew that franchise, and if so, on what tenns.
As noted above, in order to obtain renewal of its franchise, Mediacom must among
other things make a proposal that is reasonable to meet the future cable-related community
needs and interests, taking into account the cost of meeting such needs and interests, 13 For
this reason, the City has conducted a process of needs ascertainment to identify those
cable-related needs and interests, as detailed in Section I of Part 2 below,
The City has also reviewed its records regarding Mediacom's compliance with the
terms of its franchise and with applicable law, regulations, and standards. In the
discussion below, past compliance issues are addressed primarily in connection with the
City's needs and interests, to indicate where specific problems bear on the requirements
set forth for the next franchise period, These requirements and model for the next
franchise term draw upon the City's experience over almost fifty years as a cable
franchising authority.
Over the past two years the City has also engaged in extensive discussions with
Mediacom on key issues regarding a renewal franchise, pursuant to the informal process
under the Cable Act. Those discussions have been taken into account in formulating the
recommendations in this Report.
The City cable franchise term originally ran from 1981 until 2001. The original
term of the current franchise expired September 30, 2001. While engaged in renewal
negotiations with Mediacom, the City granted a series of temporary extensions to the
franchise, a related hub site lease, and other side agreements through December 31, 2004.
City staff began meeting with Mediacom representatives in early 2003 to discuss
II See 47 U.S,C. § 544(a)-(b) (services); 47 U,S,c. § 543 (rates),
12 See letter from Kathleen McMullen dated October 29, 1998.
13 See 47 U.S.C. §§ 521(2), 546(c)(1)(D).
10
renewal. In a series of meetings with Mediacom's staff and attorneys, the City presented
its needs and interests, described the sorts of franchise provisions it would look to see in a
renewal franchise, and repeatedly evinced a willingness to be flexible and to consider
novel and creative solutions to renewal issues. Initially, the company did not respond
constructively to the challenge of meeting the City's needs and interests, Once the City
authorized development of an RFRP on February 16, 2004, the parties did make
significant progress toward reaching a new agreement. However, as of the end of
November, 2004, even an agreement in principle had not been reached on all of the key
issues that were central to a new franchise agreement. Under these circumstances, it
appears to be necessary for the City to take the step of issuing a formal RFRP.
This Report recommends that the City issue a Request for Renewal Proposal in
substantially the form of the attached draft RFRP. If the Council accepts this Report and
issues the RFRP as recommended, the RFRP will require Mediacom to submit a proposal
in response to the RFRP within sixty days from the time the RFRP is issued, (For
simplicity's sake, the discussion of specific issues below assumes that the Council
chooses to authorize the issuance of the RFRP in the recommended form, and hence
refers to the recommended provisions as if actually so issued.) Because Mediacom has
examined many renewal issues in detail in the course of its discussions with the City, the
company has already carried out much of the preliminary work necessary to respond to
the RFRP. A sixty-day response period should thus allow Mediacom sufficient time to
respond, while preventing unnecessary delay, Staff also recommends, however, that the
Council authorize staff to extend that deadline an additional thirty days if such extension
would be in the best interest of the City.
Once Mediacom submits its proposal in response to the RFRP, federal law
requires that the City provide prompt public notice of such proposal and, during the four-
month period which begins on the date of submission of the proposal, either renew the
franchise or issue a preliminary assessment that the franchise should not be renewed. If
the Council concludes on the basis of Mediacom's proposal that the franchise should not
be renewed, the City shall, at Mediacom's request or on its own initiative, commence an
administrative proceeding as described above.
Under federal law, Mediacom is free to continue informal discussions with the
City after the issuance of the RFRP, and the Council may, after affording the public
adequate notice and opportunity for comment, grant or deny an informal proposal from
Mediacom at any time. 14
14 See 47 U,S,c. § 546(h),
11
PART 2: FUTURE NEEDS AND INTERESTS OF THE CITY
I.
HOW FUTURE NEEDS AND INTERESTS WERE IDENTIFIED
A.
The Ascertainment Process
In support of its renewal efforts, the City retained CBG Communications, Inc.
("CBG"), to conduct an ascertainment study to identifY public, educational, and
governmental access needs,I5 Thomas G, Robinson, Executive Vice President of CBG,
directed this review. The City also retained Miller & Van Eaton, P.LLC" to provide
legal services to support the development of the RFRP.
In conjunction with CBG and Constance Book, PhD, the City provided four
opportunities in January-April of 2002 to gather information from residents regarding
their cable television experience, These included: a randomly mailed written survey
(1361 surveys returned), a dedicated address for e-mail response (received 62 e-mails), a
dedicated phone line where residents could leave a recorded message (received 116
phone calls), and a public hearing.
The City has also referred to the experience of other communities in cable
franchising where appropriate, Any given city will necessarily have some needs and
interests in common with other communities, while some will be unique and specific to
that city. Thus, where Dubuque's situation parallels that of other communities, staff has
drawn upon the experience of others to help formulate and describe the needs and
interests of the City of Dubuque and the ways in which those needs and interests might be
met. On the other hand, where Dubuque's needs and interests are specific to the City,
staff has sought to state them as clearly as possible as well as to ensure that the contents
of the RFRP conform to the limitations established by federal law,
Based on this work, staff has developed a summary of the future cable-related
needs and interests of the City, Those needs and interests are briefly set forth in this
report, and staff recommends that the RFRP issued to Mediacom require the company to
meet those needs and interests.
B.
Organization of This Report
The discussion of future needs and interests is divided into five sections (sections
II-VI below), Section II discusses the general system design - the basic characteristics of
the cable system, including reliability, quality, and functional capabilities. Section III
addresses particular issues regarding facilities and equipment, such as interconnection
with other systems; headend design; equipment that permits parental control of viewing;
equipment required to provide emergency alert services; equipment and facilities required
to ensure that services are accessible to the hearing-impaired; equipment and facilities
IS The results of this effort are described in the CRG Report.
12
required to ensure adequate customer service is provided; and issues regarding future
system design upgrades. Construction-related issues are addressed in Section IV.
Section V discusses needs and'interests for public, educational and governmental
channels, services, facilities and equipment, in addition to the network requirements
discussed in the first section. Finally, Section VI discusses some of the provisions to be
included in the Franchise Agreement.
The Cable Act specifies what requirements the City may establish in a request for
proposals.16 The requirements stated in the draft RFRP are confined to those specified in
the federal law. According to the Cable Act, however, the City may deny renewal to
Mediacom based on the four criteria described above, including whether the operator's
proposal is reasonable to meet the future cable-related community needs and interests,
taking into account the cost of meeting such needs and interests,I7 Thus, this Report and
the supporting documents described above may refer to cable-related needs and interests
for which specific requirements are not established in the draft RFRP, Where the City
requires that Mediacom meet specified needs and interests, but does not require specific
means of doing so, the RFRP may present a "model" approach that illustrates how those
needs and interests may be met without limiting the ways in which Mediacom may
address the matter. This approach has the advantage of providing concrete details to
which Mediacom may refer to understand clearly the City's needs and interests, without
unduly restricting the development of creative solutions,ls
The source documents described above also include additional information
regarding other matters, such as telecommunications services. Under federal law, as
discussed in Section VI.C below, a cable franchise agreement does not normally deal
with the provision of telecommunications services to the public (as distinct from any such
services that may be involved in an institutional network), Thus, this Report and the draft
RFRP do not address such other matters, The information is retained in the source
documents because it may nonetheless be important with regard to the City's
telecommunications planning aside ITom the cable renewal process. Only the City's
cable-related needs and interests, however, are reflected in the RFRP,
16 See, e.g., 47 U.S,C. § 544(b)(1) (franchising authority may in its request for
proposals establish requirements for facilities and equipment, but may not generally
establish requirements for video programming or other information services).
17 See discussion on page 9 above,
IS See Section H.C below.
13
II.
SYSTEM DESIGN AND CAPABILITY ISSUES
Under the Cable Act, as àmended, franchising authorities may establish
requirements for "facilities and equipment. " 19 In particular:
Facility and equipment requirements may include requirements
which relate to channel capacity; system configuration and capacity,
including institutional and subscriber networks; headends and hubs; two-
way capability; addressability; trunk and feeder cable; and any other
facility or equipment requirement, which is related to the establishment
and operation of a cable system, including microwave facilities, antennae,
satellite earth stations, uplinks, studios and production facilities, vans and
cameras for PEG use?O
Thus, for example, a franchising authority may not only determine requirements
for the facilities and equipment used in the subscriber network, but may also require that
a cable operator provide an institutional network, as further discussed below,21 This
Section II describes Mediacom's current cable system; summarizes the City's needs and
interests with respect to that cable system; and summarizes staff's conclusions regarding
the type of network that could satisfy those needs and interests,
A.
Mediacom's Current Cable System
Mediacom's Dubuque system, which is a Hybrid Fiber Coaxial (HFC) system,
operates in the forward direction from 50-750 MHz. Mediacom provides a variety of
different services, including analog basic services (such as off-air broadcast stations,
satellite services, premium services, PEG channels); FM radio and audio services;
standard digital and digital premium services; digital pay-per-view channels; upstream
and downstream cable modem communications; and digital music channels,
B.
Condition of Mediacom's Subscriber Network
CBG's initial technical review of the system noted a variety of concerns regarding
system performance data provided by Mediacom, focusing on compliance with FCC
1947 U.S.c. § 544(b)(1).
20 1984 House Report at 68, reprinted in U.S,C,C,A,N. at 4705.
21 47 U,S.c. § 541(b)(3)(D). Cf Implementation of Section 302 of the
Telecommunications Act of 1996: Open Video Systems, CS Docket No. 96-46, Third
Report and Order and Second Order on Reconsideration, 11 FCC Rcd 20227, ~ 146 (Aug.
8, 1996) (FCC acknowledges that "a local franchising authority may require a cable
operator to provide institutional networks as a condition of the initial grant, renewal or
transfer of a franchise").
14
standards, testing requirements and other specifications. CBG noted several deficiencies
that had been observed in the FCC Proof-of-Performance test results submitted by
Mediacom concerning its compliance with FCC standards, For example, Mediacom's
August 2001 tests indicated some faifures related to the visual signal level requirement.
The Winter 2002 Proofs provided by Mediacom appeared to resolve these concerns, but
at the same time a new issue arose: the in-band (or in-channel) frequency response
summation information indicated that the results with a converter failed the performance
requirement. According to FCC rules, as of December 30, 1999, all in-channel tests
should be performed utilizing a converter. CBG noted, however, that the in-channel
response measurements listed in the detailed information for each of the three test points
appeared to have been performed without a converter22
CBG also noted potential compliance problems in relation to the number of test
points located in the City, According to FCC rules, while the number of system test
points can be developed based on subscriber population counts for the entire system
served by a single headend, there should be, regardless, at least one test point per hub or
local headend service area. CBG noted that the three test points given for the City of
Dubuque were provided for each of the hubs listed, but not for the headend, which
appears to be the local service point for a number of subscribers on the western side of
the City.23
A more general issue noted by subscribers in their responses to the residential
needs assessment survey was that of problematic signal quality on the broadcast channels
received and distributed by Mediacom. Because of the geographical location, residents in
Dubuque are largely unable to adequately receive broadcast signals from the closest
network affiliates, This fact helps drive such a high penetration for Mediacom's cable
services. However, the same geographical factors make it difficult for a cable operator to
receive high-quality broadcast signals over the air in Dubuque. Thus, the condition of
imported broadcast signals has been a long-standing problem in the City.
At the time of CBG's initial study, Mediacom appeared to receive most of these
signals off-air with its local tower facilities. Since that time, however, Mediacom has
taken steps to bring in several of these signals by direct fiber connection, either from the
broadcast station itself or from an over-the-air reception site near the station, with
22 In its August 12, 2002 response to the City's June 6, 2002 letter noting this
issue, Mediacom's engineering staff provided an explanation as to why it did not use an
actual converter to perform the test and indicated that it believed that its methodology
was consistent with good engineering practices, However, industry standard practice
employed by cable operators in numerous cable systems, as well as that specifically
required by the FCC, requires that a converter be utilized for the test.
23 Mediacom indicated that, while it tests at this point as part of its overall Proof
for its system serving the City of Dubuque and the surrounding area, it did not believe
that it had to maintain a test site in each hub area if it did not use any microwave
transmission devices for operation of its cable system.
15
noticeable improvement in the quality of reception, Staff understands that Mediacom
intends to convert all its broadcast signals to fiber transmission within approximately the
next eighteen months. If so, this vyould probably solve the broadcast signal quality
problem.
c.
Needs and Interests:
System
Basic System Characteristics and "Model"
The staff's review of the City's future cable-related needs and interests shows that
the City requires a cable system with the general characteristics outlined in this section24
Any renewal proposal must ensure that the cable system maintains these characteristics
over the life of the franchise, A proposal would fail to meet the City's future cable-
related needs and interests if it did not ensure that the system would have the specified
characteristics,
In many cases, as noted above, the characteristics outlined in this section may be
effectively defined by reference to a "model" cable system. For example, the City
requires a level of reliability comparable to that of a hybrid fiber-coaxial ("HFC") system
with certain characteristics, as described below, Thus, if Mediacom proposes to provide
the model system, other things being equal, Mediacom's proposal should satisfy the
requirement in question. On the other hand, Mediacom does not have to propose the
model system in order to qualify for renewal. However, if Mediacom does not propose
the model system, Mediacom must show that the system it does propose satisfies the
needs and interests at least as well as would the model system.
Mediacom's proposal must thus be reasonable to meet the following future
cable-related community needs and interests, taking into account the cost of meeting such
needs and interests.
1.
Needs and Interests: Reliability
The City's needs and interests include the facilities and equipment needed to
maintain a level of reliability at least on a par with that of the system now in place,
Reliability is an important factor in service quality for the subscriber, even for traditional
entertainment services.25 But it is becoming still more important as subscribers
increasingly come to depend on the cable system for continuing, up-to-the-minute
information, whether through news reports, weather information, emergency alerts, or
Internet access. Reliability is necessary in a different sense for public, educational, and
governmental ("PEG") access users, who cannot disseminate their PEG programming if
the system does not function. Finally, if governmental entities and/or businesses are to
make effective use of the system for advanced applications, it must be highly reliable,
24 As will be shown below, the same basic characteristics apply to the I-Net as
well as to the subscriber network, See Section V,C,3 below.
25 Cf 47 U,S,C. § 546(c)(1)(B) ("quality of the operator's service" may be taken
into account in denying renewal).
16
Thus, Mediacom's system must continue to meet the City's need and interest in
reliability,
2.
Needs and Interests: Siena' Quality
The City's needs and interests include the facilities and equipment necessary to
provide signals of an acceptable quality. The need for good signal quality has become
still more crucial as cable systems have come to offer interactive services, due to the need
for a clean return path as well as a clean downstream signal26 Digital video also requires
close attention to signal quality, since below a certain threshold a digital signal will fail
completely, while a conventional analog signal might still be viewable even as it
continues to degrade. Thus, Mediacom must maintain the necessary signal quality,
3.
Needs and Interests: Safety
The City's needs and interests include the correction and prevention of safety
problems in Mediacom's facilities and equipment.
The system has not generally been characterized by an excessive number of plant
violations?7 However, safety violations must be corrected, regardless of their frequency.
Any renewal franchise must incorporate provisions that facilitate addressing such matters
promptly in the future.
4.
Needs and Interests: Burden on Public Riehts-of-Wav
The City's needs and interests include a system design that minimizes the burden
of construction, installation, and repair on the City's public rights-of-way.
Each intrusion into the rights-of-way imposes burdens on the City and its citizens.
One major burden is the cost of repaving roads and restoring landscaping. While
Mediacom should of course be required to bear the immediate costs of repaving and
restoration, each such repaving also significantly decreases the useful life of a street.28 In
addition, the City incurs the administrative costs of inspecting and coordinating such
construction work, Moreover, City residents and other persons passing through the City
must suffer the less tangible, but real, costs of traffic disruption and delays during
construction, Thus, the City has needs and interests in minimizing and coordinating such
work, so that intrusions into the public rights-of-way need not be repeated unnecessarily.
26 See CRG Report at p.l04,
27 See
("CRG Technical Report") at_.
28 See, e.g., studies cited in Frederick E. Ellrod III and Nicholas P. Miller,
Property Rights, Federalism, and the Public Rights-of Way, 26 Seattle U. L. Rev. 475,
492-93 (2003) ("Ellrod & Miller").
17
The installation of conduit whenever streets are opened also reduces right-of-way
burdens. Once conduit has been installed, it is much more likely that future installations
or repairs of cable plant or of other systems can be accomplished without further street
cuts. Thus, the City has adopted a policy of laying conduit whenever streets are opened,
and will seek to coordinate with Mediacom to ensure that as far as possible any
underground work can be completed by both parties at the same time. The City should
require coordination of trenching to maximize the extent to which conduit can be
installed without additional disruption.
Mediacom must propose a system that minimizes burdens on the public rights-of-
way, and in particular minimizes the need for repeated intrusions into the rights-of-way,
as far as possible,
5.
Needs and Interests: Capacity
The City's needs and interests include facilities and equipment that provide a
carrying capacity at least comparable to that of other modern systems. As discussed
below, the 750 MHz bandwidth now available on the system is less than that of recently
built or rebuilt systems, which typically have a capacity of 860 MHz, The capacity
available on a cable system limits the number and type of services that can be offered,
particularly for interactive and digital uses. Mediacom has asserted, however, that 750
MHz is sufficient for all applications it currently offers on the system. Mediacom's
proposal should indicate whether and (if applicable) why Mediacom's current 750 MHz
capacity is sufficient to meet the City's needs and interests, and for how long Mediacom
expects that to be the case.
6.
Needs and Interests: Flexibility and System Improvement
The City's needs and interests include facilities and equipment with the maximum
flexibility to accommodate future services and capabilities. Mediacom must ensure that
its proposed system is able to adapt as flexibly as possible to future needs and interests
over the next franchise term. In particular, and without limitation, given the pace of
progress in communications systems, the franchise agreement must have an enforceable
mechanism to ensure that the system is kept up to date if the franchise term is over seven
years.
The preferred mechanism for this purpose, which has worked well in the past, is
the "updating fund" - a capital funding commitment from Mediacom to improve the
system on an annual basis, rather than allowing the system to fall behind the
technological curve and then having to scramble to catch Up29 The 1981 franchise
agreement set the annual capital investment to update system technology at $200,000. In
29 See current franchise agreement at § 6.15.
18
2004 dollars, that investment would amount to more than twice that dollar amount, or
about $415,400.30 Staff thus recommends an updating fund of$400,000 per year.
The City's experience in the current franchise renewal is also instructive with
respect to the period covered by this fund, The 1981 agreement provided for the updating
fund during only the middle ten years of a twenty-year 1Tanchise. Both ends of that
limitation, however, now appear problematic. During renewal negotiations, Mediacom
upgraded its system from a bandwidth of 550 MHz to the current 750 MHz, which
represents a significant improvement but is less than the capacity that would be offered
by a newly-constructed contemporary system, which would typically be built to carry 860
MHz, Thus, to some degree a new franchise would start out already behind the curve of
technological improvement. Moreover, Mediacom's slowness in responding to the City's
renewal initiatives, and the resulting length of negotiations, has shown that under the
current federal law a franchise renewal may take much longer than anticipated and may
force the City to continue well beyond the original 1Tanchise term before a final
acceptance or denial of renewal can be achieved. Thus, there is considerable danger that
at the far end of a franchise term, a system could fall behind the state of the art.
Accordingly, staff recommends that an updating fund for a future franchise term cover
every year, until a new franchise is agreed to or renewal is denied.
It should be noted that such an updating fund is not a payment by Mediacom to the
City - it is not money given up by Mediacom. Rather, it is an investment by Mediacom
in its own facilities, resulting in increased asset value and probably in enhanced revenues
to the company as it becomes able to offer new and improved services. The updating
fund represents money that a responsible cable operator would in any case be devoting to
capital improvements, and thus merely provides a way for the City to ensure that
Mediacom does in fact act as a responsible operator. lt is quite possible that there will
never be a year in which the updating fund would require Mediacom to make any
investments it would not have chosen to make on its own initiative. Nevertheless, in case
the company should at some future date fail to take these steps, the updating fund
provides a way of making sure the system serving the City does not fall into
obsolescence.
7.
Needs and Interests: Interactivitv
The City's needs and interests include facilities and equipment that make the cable
system fully interactive, Today's cable system applications, such as high-speed Internet
access, require such two-way functionality, Future interactive applications will also need
this functionality, In particular, PEG providers in the City have future needs and interests
in providing interactive PEG applications, Distance learning, for example, could be
extended to the home, and PEG programming generally could be enriched by allowing
subscriber interaction while a program is in progress. Thus, future PEG interactive
applications could embrace both video-on-demand and information retrieval. Thus, to
ensure that the system is capable of providing services to meet future needs and interests,
30 See, e.g., the inflation calculator at wwwaier.org/coicalc.htmi.
19
it is essential that the system continue to provide clean and effective transmission in both
directions.
One aspect of this two-way furíctionality is the need to ensure sufficient upstream
bandwidth. An HFC system is normally segmented into optical transfer nodes, to provide
(among other things) sufficient upstream noise reduction and bandwidth for interactive
services.31 Since noise in the upstream direction is due to all amplifiers feeding into the
node, such segmentation is normally required to reduce the total amount of noise. This
increases the upstream bandwidth available to each subscriber without requiring
additional bandwidth on the system as a whole, because the same frequency bands may
be reused from node to node. In effect, the upstream bandwidth becomes a function of
the total bandwidth assigned to upstream transmission on the system, divided by the
number of subscribers per node, In the context of current service offerings, this upstream
capacity is crucial for effective Internet usage.32 But whether or not this particular
service continues to be offered over the life of the franchise, it is clear that interactive use
will require similar functionality,
D.
Requirements and Model System Design
Based on the above needs and interests, the attached draft RFRP identifies (1)
requirements for facilities and equipment that are necessary in order to make Mediacom's
system perform satisfactorily, and (2) a model showing how a proposal could embody
further features that would meet the City's future cable-related needs and interests, taking
into account the cost of meeting such needs and interests.
31 See CBG Report at 134-135.
32 The FCC has ruled that Internet service over a cable system is neither a cable
service nor a telecommunications service, but an information service. See Declaratory
Ruling and Notice of Proposed Rulemaking, Inquiry Concerning High-Speed Access to
the Internet Over Cable and Other Facilities, 17 FCC Rcd, 4798 (2002) ("FCC
Declaratory Ruling"), This ruling is currently under review, Declaratory Ruling and
Notice of Proposed Rulemaking, Inquiry Concerning High-Speed Access to the Internet
Over Cable and Other Facilities, 17 FCC Red. 4798 (released March 15,2002), aJJ'd in
part, vacated in part Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. Oct 06,
2003) (NO, 02-70518,02-70686,02-72251,02-70684,02-70879, 02-70685, 02-71425),
rehearing and suggestion for rehearing en bane denied (Aug 31, 2004), , National Cable
& Telecommunications Ass'n v. Brand X Internet Services, 125 S.Ct. 654 (2004) (NO.
04-277) and cert. granted FCC v. Brand X Internet Services, 125 S,Ct. 655 (2004)
(NO. 04-281) and cert. denied, National League of Cities v. FCc., ~ S.Ct.~, 2004
WL 2245551 (Dec 06, 2004) (NO, 04-460). It is thus uncertain at this time to which
regulatory classification Internet access should be assigned, To ensure that the RFRP is
consistent with federal law, staff recommends that the RFRP not require provision to
subscribers of any specific Internet-related service,
20
In addition to meeting the requirements listed in the RFRP, Mediacom must
provide facilities and equipment meeting the needs and interests outlined above. The
following model shows how this migh~ be done.
There is more than one way to meet those needs and interests. The following
model system, if proposed by Mediacom, illustrates a way of doing so, other things being
equaL)) Mediacom may wish to propose a different way of meeting the City's needs and
interests, If so, however, it is up to Mediacom to show that its proposed system would
meet those needs and interests at least as well as would the model. The model thus
provides a benchmark or reference point against which Mediacom's proposal may be
tested.
1.
Current Cable Technolol!V
The dominant feature of cable systems today is the use of fiber-optic cable for the
main distribution network, Fiber transmits signals using coherent light, rather than
electricity. It requires less amplification and is subject to less interference (noise) than
are copper cables that depend on electrical transmission, such as traditional coaxial cable
or twisted-pair telephone lines, Thus, in most wireline applications, fiber has significant
advantages over copper.
For a number of years, the incremental cost of laying fiber has been at least
competitive with that of laying coaxial cable. The primary cost difference comes at the
point where the fiber ends, because the equipment necessary to convert optical signals
back to electrical signals for use by televisions, telephones, and computers is not required
by coaxial cable. Thus, a "fiber-to-the-home" ("FTTH") design would be more costly
than a coaxial system, because conversion equipment would be needed at every home.
However, that cost is constantly decreasing, to such a degree that V erizon, for example, is
now proposing to install FTTH plant throughout its telephone service areas,)4 At the
same time, a full FTTH installation would require significant disruption of public and
private property, as every line and drop must be replaced. In the meantime, HFC
architecture provides a compromise. HFC uses fiber for the main trunk lines, but
traditional coaxial cable for the last leg of transmission to the home. Cable systems being
built today use fiber trunk lines to carry signals into neighborhoods, to a point called a
)) "Other things being equal" means that Mediacom would not add to a proposal
conforming to the model below other features that would render it unworkable or cause it
to fail to meet the City's needs and interests. For example, it would not suffice if
Mediacom proposed to keep the system up to date throughout the franchise term, but
required the City government to provide funding for such upgrades, The City should
reserve the right to evaluate any proposal as a whole, and not merely on whether it tracks
the proposed model.
)4 News Release, Verizon Deploying Fiber Optics to Homes and Businesses in 6
More States in Northeast and Mid-Atlantic, date October 21, 2004 available at
http://newscenter.verizon.comlproactive/newsroomlrelease. vtml ?id =87633.
21
"node." At the node, signals are converted from light to electricity and routed onto
coaxial cable, from which individual locations are served. As long as the distance the
coaxial cable must carry the signal \s limited (so that the system does not use many
amplifiers), a single-cable HFC system can deliver high-quality, high-speed signals to the
home, and provide enough two-way capacity to send video and data from the home to
various locations on the cable system. At the same time, its capacity is far less than that
ofFTTH.
For larger institutions, on the other hand, it makes sense to bring fiber all the way
to the individual site at once. The high volume of information traveling to and from such
a location makes it cost-effective to avoid the bottleneck of coaxial cable altogether by
connecting the building directly to the node via fiber. This factor bears on the design of
the I-Net, as discussed below.
2.
Characteristics of the Model
The attached draft RFRP sets out characteristics of the model in detail. The
following list highlights certain key features of the model.
Use of fiber-optic cable at least to the feeder, so that (assuming a single
cable is used) no more than 500 homes on the average, and no more than
700 homes in any case, are served from any fiber node. Such
"segmentation" into local nodes is often referred to as "fiber-to-the-
neighborhood." A node size of approximately 500 homes should make it
possible to reduce the number of amplifiers in cascade to no more than
four. To the extent that node size can be reduced to 200 homes per node,
it may be possible to dispense with amplifiers altogether35 Even if the
system is not designed for nodes of fewer than 200 homes to begin with, it
must be designed in such a way that it could later be converted to nodes of
that size if necessary, to avoid having to relay cable, Thus, node service
areas must be configured, and enough fibers brought to each node, so that
each 500-home node could be converted readily to a 150- or 200-home
node.J6 Such an architecture may be viable until it is practicable to take
the step to FTTH. If Mediacom's proposal does not propose the model
architecture, Mediacom must show that such an alternative provides at
least equivalent capabilities to those of the model system,
.
No more than five active components, including the node, in any single
cascade from the headend.J7
35 See generally CBG Report at pp. xx, 134-136.
36 CBG Report at pp, 134-135.
37 See CBG Report at pp. 127-128,
22
.
Use of active components rated for at least 750 MHz, and passive
components rated for at least 1 GHz so that the system can later be
upgraded by merely switching out the active components, without relaying
the cable3&
.
Two-way (bidirectional) activation. The model system provides a clean
return path with a current minimum average of approximately 512 Kbps
upstream39 for selection or use of cable services. A clean path for
upstream video must meet FCC technical standards for downstream video;
a clear path for data requires a carrier-to-noise and carrier-to-interference
each in excess of28 dB.4o
.
Protection against outages due to power failures of up to four hours'
duration occurring anywhere in the distribution system. Backup power
supplies are to be located at each node and amplifier and at the headend4]
3.
How the Model Meets the City's Needs and Interests
The model cable system meets the City's needs and interests, as specified above,
in the following ways.
Reliability: The fiber architecture is more reliable than that of coaxial cable. The
electrical signals in a traditional coaxial cable system lose strength as they travel through
the cable and must be amplified frequently, Every amplifier represents a possible point
of failure, cutting off service to all subscribers "downstream" from the amplifier. The
light traveling through a fiber-optic line, by contrast, loses strength far less quickly and
hence requires far less amplification. Thus, a system using fiber at the levels described in
the model - sufficient to eliminate most of the amplifiers along any given route between
the headend and the home - would be highly reliable42
Signal quality: A fiber-based system delivers a much higher-quality signal than
copper - better pictures, clearer sound, and less error-prone data. This is because each
amplifier in the coaxial cable tends to add noise and distortion, and also because the
signal in coaxial cable is subject to electrical "noise" and static from outside sources,
such as electric appliances, while fiber is not43 Minimizing the number of active
3& See CBG Technical Report at -'
39 CBG Technical Report at_,
40 CBG Technical Report at_.
4] CBG Report at p. 128 (indicating Mediacom currently provides this),
42 CBG Report at pp. 91, 134.
43 CBG Technical Report at_.
23
components (such as amplifiers) in cascade, and maintaining and replacing plant where
needed, will minimize outside electronic interference (ingress) to ensure the best possible
signal quality. This signal quality is important for traditional entertainment video, It is
still more important for data transmission, where small transmission ertors have more
serious consequences. A bit error that changes one pixel in a frame in a TV transmission
will be barely noticeable; but one that changing a single number in a spreadsheet may be
fatal.
Safety: The model is compatible with sound maintenance procedures. It
minimizes the cost of maintenance to Mediacom, and thus the incentive to cut corners, by
reducing the number of active components and hence the overall maintenance needed.
Burden on the rights-of-way: Fewer active components means less need to enter
or disturb the rights-of-way to conduct repairs or maintenance. The model also
encourages installation of conduit whenever streets are opened, offering the prospect of a
gradual decrease in the need for construction that would disturb the road surface. Thus, a
system similar to the model will also reduce burdens on the rights-of-way, as compared
with a less fiber-rich system.
Capacity: The model maximizes the information-carrying capacity of the cable
system by segmenting the system into neighborhood nodes. This permits the same
frequencies to be reused in different nodes, in much the way cellular telephone
frequencies are reused in different cells: each node can assign the same range of
frequencies to a slightly different set of programming sources, Thus, an HFC system is
well suited to "narrowcasting" of programming to particular interest groups or other
groups ofsubscribers.44
Flexibility and System Improvement: The highly versatile fiber backbone, with
a capacity effectively limited only by the type of electronics used at the ends of each
fiber, should ensure that the cable system can carry a wide range of services with almost
unlimited capacity, and is thus likely to be well positioned to support new services and
functions (with, of course, concomitant new potential revenue streams for the cable
operator),
Interactivity: By minimizing amplifier noise and segmenting the return path, the
model system makes available sufficient upstream capacity to meet the City's need for a
system that can support interactive cable services.
44 See CBG Technical Report at_.
24
III.
OTHER GENERAL FACILITIES AND EOUIPMENT ISSUES
A.
Needs and Interests: ,Interconnection
The City's needs and interests include facilities and equipment that provide the
ability to interconnect, upon request, with other nearby systems,
Cable systems are no longer isolated enclaves. Rather, they enable subscribers
and other users to gain immediate access to information from both within and outside the
franchise area. Satellite feeds and national networks formed the initial links between the
cable system and the world at large. With the advent of cable modem Internet access,
connectivity has become a crucial selling point for cable operators,
Interconnection requirements represent a particular application of this
connectivity. The City must be able to ensure that unique information and programming
can be exchanged among local systems, both inside and outside the City,4 At present,
staff has identified three key areas in which interconnection is important:46
.
Exchange of PEG programming of regional interest among local systems.
.
Exchange and relay of emergency alert messages. Such alerts may need to reach
City workers, students, and emergency personnel who live outside the City
borders, and to provide alerts to neighboring jurisdictions regarding emergency
conditions inside the City that may affect those communities (such as traffic
conditions),
.
Connection of government local area networks into a wide area network that
would allow seamless transmission of I-Net data among local jurisdictions, This
interest also has an emergency-related aspect: in the event of a major disaster or
national emergency, public networks such as the Internet and the public switched
telephone network may become overloaded and unusable. A network of
interconnected I-Nets could provide a crucial alternative for public safety and
other public transmissions by offering redundant paths for communications that
would not be subject to the same sorts of demands as would public networks.
Thus, the City needs to be able to require Mediacom to interconnect with other
area systems,
Therefore, based on the needs and interests discussed above:
.
Mediacom's system must be designed so that it is able to interconnect with
other area communications systems.
45 Section 6.5 of the current franchise agreement deals with interconnection.
46 See, e.g., CRG Report at pp, xiii, 91.
25
.
Mediacom must be capable of interconnecting with any other cable
companies in the City, in the event that there are any other cable
companies in the City, Each interconnection must include at least the
facilities and equipment required to allow video, data and voice signals to
flow seamlessly across all facilities for each system on any channels on
the institutional network and on channels on the subscriber network
dedicated for public, educational and government use, The interconnected
systems must operate as a single, integrated network for PEG and I-Net
purposes.
.
Mediacom must interconnect its system with any other communications
system in adjoining areas on the City's request.
.
The City and other users must be able to attach appropriate devices to the
I-Net (so long as the integrity of the system is not harmed) that would
allow it to be interconnected to any other communications provider,
including, for example, a statewide educational communications network
such as the ICN.
B.
Needs and Interests: Headend Design
The City's needs and interests include certain headend facilities and equipment.
In order to satisfy the needs and interests determined by the City, and based on the
recommendations of CBG:
.
Mediacom's headend must accommodate Emergency Alert System (EAS)
equipment, as discussed below47
Mediacom's headend must accommodate the switching equipment
necessary to make interactive cable services possible.
.
Mediacom must install equipment at its headend that allows it to receive
and cablecast signals in substantially the form received. For example, the
headend must include equipment that transmits in color video signals
received in color; transmits in stereo audio signals received in stereo; and
transmits signals with a secondary audio signal in such a way that the
secondary audio signal can be received,
.
For the same reasons discussed above regarding power supplies for the
distribution system, the headend must possess backup power allowing at
least four hours' operation in the event of a power failure.
47 See CBG Report, p. -'
26
The system must be designed so that the City can install (co-locate)
equipment at the system headend and/or control centers and hubs, and
otherwise connect that yquipment to the system to whatever extent may be
required to permit full use of the capacity designated for public,
educational and government use, including I-Net use.
Accordingly, Mediacom must ensure that its headend meets the above needs and
interests.
C.
Needs and Interests:
Equipment
Compatibility of System with Subscriber
Federal statutes and FCC regulations impose requirements regarding system
compatibility with subscriber equipment. Among other things, such federal requirements
are designed to address the problem that subscribers may be unable to take advantage of
certain features of their equipment, such as picture-in-picture or the ability to watch one
program and simultaneously record a different program, due to the use of cable
converters. As required by federal law, the City does not prohibit, condition, or restrict
Mediacom's use of any type of subscriber equipment or any transmission technology, and
thus does not establish specific requirements in this Report or the draft RFRP48
D.
Needs and Interests: Equipment for Parental Control of Viewing
The City's needs and interests include facilities and equipment that provide for
parental control of viewing.
The City, like other jurisdictions, needs to be able to ensure that parents can
control the delivery of inappropriate material to minors. Federal law requires that
Mediacom provide (by sale or lease) devices by which a subscriber can prohibit viewing
of a particular cable service during selected periods, and that Mediacom block a premium
channel upon a subscriber's request49 Mediacom must also refrain from providing any
cable services that are obscene50
A separate problem has been reported in other jurisdictions where some
subscribers experience extraordinarily high (thousands of dollars) charges for pay-per-
view programming in a single month, possibly reflecting misuse or inadvertent use of
remote control ordering systems, For this reason, any system for ordering movies or
other pay-per-view programming should, if practicable, have the capability to prevent a
subscriber who has an high outstanding balance (for example, $300) from ordering
programming without first speaking to a customer service representative.
48 See 47 U,S.C. § 544(e).
49 See 47 U,S,C. § 544(d)(2)-(3), Cf current franchise agreement at § 6,12,
50 See 47 U.S,C. § 544(d)(I).
27
Thus, Mediacom must provide such parental control devices.
E.
Needs and Interests:' Emergency Alert System
The City's needs and interests include facilities and equipment that enable the
system to be used for emergency alerts.
The cable system provides one means of quickly communicating a City-wide or
regional alert in case of emergencies. The federal government requires cable operators,
among others, to implement an Emergency Alert System (EAS) capable of transmitting
national alerts51 In addition, however, the City needs to be able to transmit local
emergency alerts as well52
Mediacom must provide facilities and equipment that allow City alerts to be
transmitted in the same manner - for example, audio and/or video overrides - as federal
alerts. In addition, Mediacom must meet the following needs and interests:
Mediacom must install all equipment required to transmit the emergency
messages to the headend and onto the subscriber network, from a location
designated by the City, with dedicated connections from that location to
the headend.
.
The system must be designed so that authorized officials can activate the
emergency alert system over a dial-up telephone line, or from any I-Net
site. Such officials must be able to transmit a prerecorded audio message
using the dial-up telephone access, and to transmit audio from any I-Net
site, It must be designed to be adaptable to support other forms of
connection (for example, via radio frequencies) as such advanced forms
may become available. The emergency alert system must include security
features to prevent activation of the system by unauthorized persons.
.
The system must be designed so that, during an emergency, the operator
does not need to take any action before local officials can activate the
emergency alert features,
5147 C,F,R. § 11.54.
52 Under the current franchise agreement, § 6.13, Mediacom must provide an
audio override of all channels and a channel that may be used for emergency broadcasts
including video as well as audio. Current FCC regulations recognize that "[t]he EAS
may be used to provide the heads of State and local government, or their designated
representatives, with a means of emergency communication with the public in their State
or Local Area." 47 c.F.R. § 11.1.
28
F.
Needs and Interests:
Customer Service
Equipment Required To Provide Adequate
The City's needs and interests include facilities and equipment to ensure that
adequate customer service is provided,
As further discussed below, the City needs to be able to ensure that Mediacom
provides prompt and effective service to its customers, and to determine whether
Mediacom complies with applicable federal, state, and local standards for customer
service 53 Mediacom must have at its immediate disposal the equipment required to solve
problems when they occur, and to conduct an ongoing and adequate program of
preventative maintenance.
City subscribers have suffered from many of the same service problems that have
faced communities elsewhere in the country54 These problems led Congress to direct the
FCC to adopt minimum customer service standards, The City has adopted the FCC's
standards bls ordinance, and may in the future adopt additional regulations as
appropriate,S In particular, however, and without limitation, Mediacom must provide
certain facilities and equipment to meet the needs and interests identified above.
.
To the extent that Mediacom relies on subscriber complaints to detect
outages and trigger repairs, there is an unavoidable delay in responding to
a network problem, Mediacom can respond more quickly and accurately
if its system incorporates status monitoring equipment that alerts staff
immediately to problems with amplifiers, power supplies, and other active
components 56 Thus, Mediacom must use status monitoring equipment
that is sufficient to allow the company to determine remotely the status of
headend, nodes, and amplifiers, and to alert Mediacom personnel in the
event of a failure.
.
Measuring compliance with telephone answering standards and similar
customer service requirements would be difficult or impossible unless
Mediacom (a) has the equipment necessary to measure performance and
(b) maintains the necessary performance records, Thus, Mediacom must
either provide telephone equipment for customer service that permits
Mediacom, and hence the City, to track busy signals and transferred calls
in such a way as to determine whether all applicable customer service
53 Customer service issues are discussed in Section VI.P.
54 See, e.g., CBG Report at Appendix A.
55 See Dubuque City Code, § 44-261.
56 See CBG Report at p. 86.
29
standards for such events are being met, or show that it can provide
equally reliable and equally detailed information by other means57
G.
Needs and Interests: Future Upgrades in the System
The City's needs and interests include provisions for facilities and equipment that
are necessary to ensure that the system meets not only present needs, but future
community needs and interests over the course of the next franchise term, taking into
account the costs of meeting of such needs and interests.
Communications technologies and communications needs are subject to rapid and
continuing change. To ensure that Mediacom's system can continue to satisfy the City's
needs and interests throughout the franchise term, Mediacom must ensure that the system
develops the necessary capabilities to meet the City's needs and interests as they will
change and develop throughout that term, While market forces may provide some
impetus in this direction, history makes clear that the City cannot necessarily rely on the
market - particularly in an essentially one-provider environment - to ensure that a cable
system keeps up with advancing technology58
In a relatively short franchise term - for example, four to six years - this problem
might not arise. The normal renewal review at the end of such a short franchise term
would allow the City to revisit the changes in technology and the market, as well as its
changing needs and interests, in the near future, In a longer franchise term, however, the
City would require a mechanism to ensure the system is upgraded as necessary, such as
the updating fund described above59
H.
Cable System Services
Federal law severely limits the City's ability to establish requirements for video
programming services or other information services in a request for renewal proposals60
57 The CBG Report at pp. 37-38 indicates that based on subscriber responses,
Mediacom is likely to be significantly out of compliance with FCC standards on
telephone response and service calls. See also CBG Report at Appendix A.
58 See Section II & n,5 above,
59 See § Il.c.6 above. In particular, the likelihood of declining bandwidth
availability on the cable modem platform as more and more subscribers begin using high-
speed access should be noted.
60 See 47 U,S.C. § 544.
30
Thus, the City will not require Mediacom's proposal to include such services, except to
the extent permitted by federallaw.61
IV.
SYSTEM CONSTRUCTION AND EXTENSION
A.
Needs and Interests: Time for Completion
The City's needs and interests include provision of the necessary facilities and
equipment in an enforceable, prompt and timely fashion. It is possible that the proposal
will not offer extensive improvements to the subscriber network62 Thus, timely
completion may turn out to be an issue primarily with the I-Net and with PEG facilities.
In any case, however, it is essential that the City be able readily to enforce the timing
requirements embodied in any renewal franchise. One corollar? is that a "time is of the
essence" clause should be included in any franchise agreement6
B.
Needs and Interests: Service to Residents and Businesses
The City's needs and interests include the extension of Mediacom's facilities to
ensure that service is available everywhere within the City of Dubuque,
As a matter of federal law, it is the City's responsibility to establish terms and
conditions for extension of residential cable service. Indeed, the City is obliged under
federal law to adopt requirements prohibiting "redlining",64 The specific situation in the
City, however, requires a more extensive service requirement. Under the current
franchise, Mediacom is required to provide service in all areas within the franchise area,
regardless of density 65 As noted above, the topography of the City renders it essentially
a "captive market" for a cable operator66 Moreover, the City covers a relatively limited
area with a relatively high population density. Given these factors, this "universal
service" requirement is reasonable, The City has a strong interest in ensuring that cable
service is available to as many as possible of its residents without prohibitive cost. That
need and interest will continue to grow as cable continues to become a vital part of the
61 See 47 U.S.C, § 544(h).
62 This observation does not commit the City to a position as to whether any given
level of improvement may be necessary to meet the needs and interests identified in this
Staff Report and the requirements of the RFRP,
63 See, e.g., § 4.16 of the current franchise agreement.
64 See 47 U,S.c. §§ 541(a)(3).
65 See, e.g., current franchise agreement at § 5.1-5,2.
66 See Section LA above.
31
community's telecommunications infrastructure. Thus, Mediacom will continue to be
required to serve the entire City.
The City has a similar interest in ensuring that business-class services can be made
available throughout the franchise area, The City's needs assessment found that
businesses and non-profit organizations of all sizes would benefit from the availabilit¿;
not only of traditional cable service, but also of business-class Internet connectivity, 7
Some such service might be provided via cable modem connections, possibly with the
assistance of wireless broadband links where cost-effective, Higher levels of service
would probably require direct fiber connections. The same sort of connectivity would
allow business-class users to provide video-on-demand services over the cable system,
for purposes such as employee video conferencing and telecommuting, customer
services, training video and interactive learning, and commercial marketing. At the same
time, such service represents a potentially lucrative new market for Mediacom,
Such services can only be offered if the infrastructure extends to the business as
well as residential locations in the City, and if fiber available for business use runs close
enough to business districts that connections can be made at prices that are cost-effective
for Mediacom's customers. The system would also need to support levels of security
higher than that normally required for residential use, and seamless integration with
businesses' internal networks68 Cost-effective extension of this infrastructure in turn
requires that Mediacom work closely with developers to ensure that cabling is done as far
as possible at the time of construction and to prewire new facilities.69
For these reasons, while the RFRP does not require Mediacom to offer any
specific services to businesses, it does require Mediacom to make the infrastructure - the
necessary facilities and equipment - available to businesses that reasonably request it,
and to cooperate with developers as described above.
In Cable Act terms, separate network facilities serving only businesses constitute
an "institutional network" as that term is used in 47 U.S,C. §§ 531(f) and 541(b)(3)(D).
However, that term is more familiarly used to refer mainly to network facilities and
capacity designated specifically for governmental and educational use. See 47 U,S.C.
§ 531(b). As a general matter, the discussion of institutional networking in this Report
will use the term in that narrower sense.
c.
Needs and Interests: Construction Procedures and Standards
The City's needs and interests include procedures and standards to guide
Mediacom's construction, maintenance, and repair activities.
67 See, e.g., CBG Report at p, 36,
68 CBG Report at p. 115.
69 CBG Technical Report at p,
32
As noted above, the City needs a cable system that delivers signals of high quality
and reliability, One of the ways to meet that need and interest is to require Mediacom to
install and maintain high-quality, moqern equipment. These issues have been generally
discussed above. Another important way to ensure that the cable system operates
correctly is to ensure that the components that are installed actually operate as they are
supposed to operate; are installed correctly and pursuant to a well-thought-out
construction plan; and are installed promptly to replace existing systems. Finally, no
matter how good the plans and the equipment, the system will not work well if the people
who install it, maintain it and bring it into customer homes are unqualified or improperly
trained, Those people are often contractors or subcontractors, not the employees of the
franchisee.
The City has strong needs and interests in ensuring sound construction,
restoration, and safety practices for Mediacom and its subcontractors, and in developing
enforcement mechanisms to ensure that Mediacom and its subcontractors respond
promptly when the City notifies them of problems. Based on these needs and interests,
any final franchise must include among other things the following elements:
Mediacom must propose and follow a quality control plan for ensuring the
equipment installed meets or exceeds manufacturer's specifications,
Mediacom must ensure that all employees, contractors and subcontractors
are properly trained. Where work is not directly performed by the
franchisee, the franchisee must nonetheless be fully responsible for it, so
that there is a single point of contact with which the City has clear
regulatory and contractual relationships, Moreover, those who perform
the work must satisfy all the requirements that apply to Mediacom in
performing the same work, such as insurance and bonding requirements.
D.
Needs and Interests: Maintenance Procedures
The City's needs and interests include proper maintenance of Mediacom's
facilities and equipment. Just as Mediacom must follow sound construction practices, it
must also employ good maintenance practices. Otherwise, even the best possible initial
system will tend to degrade over time. Mediacom must specify plans for maintenance
that are sufficient to establish and sustain compliance with applicable standards
throughout the franchise term.
E.
Needs and Interests: Geographical Information System
The City's needs and interests include incorporation of information regarding
Mediacom's facilities and equipment in the City's geographic information system (GIS).
The City is currently using computerized GIS to facilitate storage and retrieval of
various kinds of information regarding the location of property and facilities in and
around the City's public rights-of-way. If that information is kept complete and up-to-
date, such a system makes trenching and other work in the rights-of-way easier and safer,
33
as well as facilitating other tasks, such as routing school buses, Thus, the City has an
interest in obtaining necessary information about Mediacom's equipment and facilities in
a form compatible with the City's GIS, so as to minimize the delay and potential errors
involved if the City had to convert or 're-input Mediacom's information. Mediacom must
provide and update the necessary information in such form, on a periodic basis, as
requested by the City.
It should be kept in mind that the City's need for accurate information about
facilities and equipment in the public rights-of-way can be accommodated consistently
with any legitimate concerns Mediacom may have about any confidential or proprietary
information that may be involved. For example, the City must know the dimensions of
any cables traversing the rights-of-way, and the general nature of their contents (e.g.,
fiber or copper cable, so that engineers can predict whether the cable will respond to
electromagnetic means of location for underground equipment). But it is not necessary to
know exactly how many fibers are in a cable, or where they go, or what purposes they
may serve in the system. Thus, any renewal proposal must ensure that the City has full
and immediate access to all needed information, whatever reasonable arrangements may
be made to limit the distribution of allegedly confidential or proprietary data.
v.
SUPPORT FOR PUBLIC, EDUCATIONAL AND GOVERNMENT USE
PEG requirements take several forms, Franchising authorities can require
operators to designate channels in an RFRP for public, educational and governmental use.
Franchising authorities can also establish requirements for equipment and facilities - for
example, requirements for studios and cameras, as well as drops and outlets, and for
institutional networks7o Franchising authorities can enforce promises for services made
by a grantee.7! Before issuing a franchise, a community can insist that the operator
"provide adequate public, educational, and governmental access channel capacity,
facilities or financial support.,,72 This section will focus on the City's specific
requirements for channel capacity, facilities and equipment, and operating support for
PEG use, in addition to those network requirements described above,
70 See, e.g., 1984 House Report at 68,1984 U.S.C.C.A.N. at 4705 (franchising
authorities may require, among other things, "satellite earth stations, uplinks, studios and
production facilities, vans and cameras for PEG use").
7! 47 U.S,C. § 531.
72 47 U.S.c. § 541(a)(4).
34
A.
Channel Capacity
1.
Backl!round
As Congress noted when it first passed cable legislation:
One of the greatest challenges over the years in establishing
communications policy has been assuring access to the electronic media
by people other than the licensees or owners of those media, The
development of cable television, with its abundance of channels, can
provide. . . the meaningful access that. . . has been difficult to obtain.
Almost all recent franchise agreements provide for access by local
governments, schools, and non-profit and community groups over so-
called "PEG" (public, educational and governmental) channels, Public
access channels are often the video equivalent of the speaker's soapbox or
the electronic parallel to the printed leaflet.., PEG channels also
contribute to an informed citizenry by bringing local schools into the
home and by showing the public local government at workn
Mediacom's current franchise agreement was designed, among other things, to
respond to such needs and interests74 The City's experience over the past twenty-three
years has made clear the usefulness of these channels in general and their benefits to the
community, In connection with the current renewal proceeding, the City has further
reviewed its current needs and interests. The PEG requirements stated below reflect the
both this experience and the research conducted in connection with the current renewal
process,
The franchise agreement must set aside the necessary aggregate number of
channels for PEG, as detailed below, and the City retains the right to allocate them to
PEG entities as may be necessary.
2.
Needs and Interests: Public and Community Access Channels
The City's needs and interests include two downstream subscriber network
channels for public and community access use,
Public access programming in the City generally is provided under the title of
Dubuque Community Television (CTV), which is managed by Mediacom under the
general oversight of the City's Community Tele-Programming Commission. CTV
currently uses two video channels (channels 15 and 16), Since 1981, CTV has developed
the public access program in the City at large. Local organizations draw upon the
facilities and services provided by CTV to provide community programs, Both viewers
73 1984 House Report at 30, 1984 U.S.C.C.A.N, at 4667,
74 See, e.g., § 6.9,
35
and programmers have expressed a strong need and interest in continuing to have channel
capacity for CTV set aside on the cable system to meet the local community access
needs75
Mediacom must dedicate at least two channels on the subscriber network for
public access purposes, based on the needs and interests above. Mediacom should also
remain responsible for providing the necessary production, training, and logistical
support for public access programming,
3.
Needs and Interests: Educational Access Channels
The City's needs and interests include two downstream subscriber network
channels for educational access use, Currently, all educational entities share a single
channel- Dubuque Community Schools, the public school system; Holy Family Schools.
the Catholic school system that serves a substantial K-12 population in the City; and the
institutions of higher education in the City, including among others Loras College, Clarke
College, and the University of Dubuque. At this time, however, Dubuque Community
Schools is prepared to take over programming for a full-time channel by itself. To
accommodate the full range of programming available, staff recommends that Mediacom
be required to provide two educational access channels - one for Dubuque Community
Schools and one for all other educational institutions - at present.
4.
Needs and Interests: Governmental Access Channels
The City's needs and interests include one governmental access channel
and the capital support needed for access production,
The City of Dubuque serves as manager and operator of government access
programming, Channel 8, in the City. Currently, Channel 8 is managed and operated in
conjunction with the overall communications mission of the City of Dubuque, under the
supervision of the Cable Franchise Administrator. The mission of the government access
channel stipulates that the channel is used by the City to provide information to the
community pertaining to governmental issues, policies, programs and services. Four
types of programming are regularly aired on the government access channel: regular
scheduled programming (such as government meetings), special programming
(documentaries, public service announcements, interviews with citizens and public
officials), city bulletin board information, and government-oriented programming
imported from other locations.
Regularly scheduled programming includes live cablecasting and taped replays of
City Council meetings, other Board and civic meetings, and programming covering City
department events and services. League of Women Voters Candidates forums and issues
75 See, e.g, CBG Report at pp, 50-60; Addendum To The February 2003
Community Needs Assessment Report Concerning Cable-Related Public, Educational
And Governmental (PEG) Access Needs and Interests For the City of Dubuque dated
January -' 2005 ("CBG PEG Update") at pp,-.
36
debates and live election coverage are also regularly produced and cablecast on
CityChannel 8. Government access programming also includes character-generated
bulletin board content when the ch~nnel is not cablecasting live or recorded video
programming. Content is provided by City departments and Boards, civic organizations
and Commissions. While locally generated programming receives priority for airing over
Channel 8, the channel is also used to transmit valuable government-oriented
programming made available by noncommercial entities outside the City, Imported
programming that has aired on Channel 8 includes Iowa state government programming
and federal1evel programming,
Based on the City's needs and interests in this area, Mediacom must provide one
governmental access channel at present.
5.
Summarv of Access Channels
In all, the City currently requires five access channels on the Mediacom system:
(a) Public access: 2
(b) Educational access: 2
(c) City governmental access: 1
As the amount of access programming may increase over time, a franchise should include
reasonable trigger mechanisms for provision of at least one additional channel for public
access if the public access channels designated above are substantially fully utilized; at
least one additional channel for educational access if either the public school channel or
the higher education channel designated above is substantially fully utilized; and at least
one additional channel for government access if the governmental access channel
designated above is substantially fully utilized76
6.
General Needs and Interests Ree:ardine: Access Channels
The needs and interests developed in the ascertainment process support several
additional requirements regarding access channels generally,
Maintenance and Repair Service. Swift response from the cable operator with
respect to any access carriage problem is essential to the provision of access
programming. For example, if Mediacom personnel were only available during standard
business hours, and an access channel experienced a technical problem after 5:00 p.m" it
may take hours to obtain the necessary assistance, potentially ruining a live cablecast or a
night of scheduled programming, Thus, any renewal franchise must include specific
requirements with regard to all access channels, ensuring that Mediacom responds
promptly and effectively to problems with access transmission. Mediacom must ensure
76 See, e.g., CBG Report, p, -; CBG PEG Update at p. -'
37
that the channels perform well, end-to-end, so that PEG signals do not deteriorate
significantly in their transmission within the Mediacom system.
Capacity vs. Channels. With- the advent of cable modem service, cable system
capacity is already being used in ways that do not lend themselves to "channelization" in
the traditional cable sense. During the term of a renewal franchise it is likely that there
will be many applications for which "channels" will no longer be an appropriate measure
for capacity to deliver programming on the system. For example, in provision of video-
on-demand, where only a single channel at a time needs to be delivered to a receiver, the
key bottleneck may be the system's capacity to -store and retrieve programming rather
than the bandwidth of the distribution network, In other cases, as when it may be useful
to add accompanying streams of information alongside traditional video (e.g., the text of
legislation being considered at a Council meeting), there may be a need for PEG data
transmission capacity that does not require a full video channel.
For these reasons, the City has a need and interest over any future franchise term
to preserve the opportunity to use PEG capacity requirements in novel and innovative
ways, ways that may not involve the use of traditional video channels. This need can
most easily be satisfied through a straightforward provision regarding that PEG capacity.
By the time City PEG programmers become interested in such new uses for PEG
spectrum, Mediacom may well have decided to switch the entire system to digital
transmission. Because such transmissions can be digitally compressed, standard-quality
video programming can be sent using much less bandwidth than the 6 MHz normally
allocated for NTSC video, Thus, sending all signals digitally could potentially free up
"new" bandwidth inside the segments already allocated for PEG use pursuant to the
above requirements, A renewal franchise should thus require that the capacity allocated
to PEG uses should be established in terms of standard (6 MHz) video channels, and that
half of any such capacity freed up by compression of PEG signals (over and above the
compressed capacity needed to carry the original number of access channels) remains
dedicated to PEG purposes, so that PEG programmers can make use of this "reclaimed"
capacity for innovative PEG applications. (So as not to waste bandwidth, Mediacom
would be permitted to use such reclaimed capacity unless and until the City determined
that it was needed for PEG purposes,) In this way the City's access users can share in the
benefits of such improvements along with Mediacom,
In addition, a renewal franchise must provide that as Mediacom expands the
possibilities of its system for commercial purposes, it must similarly expand the
capabilities of the portion of the system dedicated for public, educational and
governmental use. For example, to the extent that Mediacom offers video on demand for
commercial purposes, it must also provide the facilities and equipment required to permit
provision of PEG programming on demand, The draft RFRP does not require Mediacom
to install a switched video system, or video on demand, nor to retrain from doing so -
just as it does not require Mediacom to move to all-digital transmission, or to refrain from
doing so. However, precisely because those options are left open at this stage, the City's
requirements for PEG capacity must be understood to extend to such new forms of
system capacity, so that the requirements are not made obsolete depending on what
improvements Mediacom may decide to implement.
38
Interactive PEG. The needs and interests regarding interactive cable services
discussed above with respect to Mediacom's commercial offerings are equally applicable
to PEG. Thus, Mediacom's system must be designed to enable interactive use of PEG
channels by subscribers, if the franchising authority and a PEG channel manager elect to
offer such a service.
B.
Equipment and Facilities Support for PEG Use
1.
Backe:round
Setting aside channels for public, educational and government use does not
guarantee that the community will be able to use those channels. As the 1992
amendments to the Cable Act suggested, there also must be adequate support for access
operations, in the form of facilities or other financial support77 Accordingly, franchises
in many communities require operators to provide facilities, equipment and services to
support public, educational and governmental use. The City's needs and interests in this
area have evolved over the past twenty-three years. Thus, the City has re-examined the
community's needs and interests for access support in connection with the Mediacom
renewal. The results of that review are summarized in this Report.
2.
Needs and Interests: Upstream Feeds
The City's needs and interests include dedicated upstream feeds for PEG
programming from certain locations,
In order for Mediacom to carry PEG access programming on the cable system, it
must provide means of transporting signals from the sites where such programming is
originated to the headend - "upstream," in contrast to the "downstream" transmission of
programming from the headend to subscribers. Mediacom must ensure that programming
received via these upstream feeds is retransmitted as sent by the PEG programmer,
without changing the attributes of the signal in such a way as to effectively degrade the
output. Transmission via coaxial cable generally tends to degrade a signal, so that
upstream transmission for any significant distance on coax is likely to result in a lower-
quality signal at the headend than at the PEG origination site. Thus, based on the needs
and interests identified by the City, Mediacom must provide upstream transmission
performance equivalent to that of dedicated fiber-optic upstream feeds to the headend,
including both the fiber itself and all terminal equipment necessary for transmission of
the signals at least for each access program to be originated there, from the following
locations:
.
Public access studio (for the two public access channels)
77 47 U,S,C. §541(a)(4): "In awarding a franchise, the franchising
authority. . . may require adequate assurance that the cable operator will provide
adequate. . . access channel capacity, facilities, or financial support."
39
.
Public school central administrative office at The Forum, 2300 Chaney
Road (for the Dubuque Community School channel)
Either the master convol room at Loras College, or the public access
studio, at the City's option (for the second educational channel)
City Hall Annex, 1300 Main Street (for the government channel)
.
If the facilities listed above should be moved to other locations, Mediacom shall
transfer the upstream feeds to the new location (including, without limitation, moving the
terminal equipment and splicing fiber as necessary).78
3.
Needs and Interests: Cable Drops and Outlets.
The City's needs and interests include cable drops and outlets at public access,
educational, and governmental sites,
Many public, educational, and governmental sites require access to the subscriber
network to receive PEG or commercial programming (among other things, so that PEG
originators can monitor their own PEG telecasts as they are distributed over the cable
system). Thus, Mediacom is currently required to provide without charge one service
outlet activated for regular subscriber service to each fire station, public school, police
station, public library, and other public building designated by the City, as well as regular
subscriber service to any additional outlets in these buildings79 Over the term of the
current franchise, public, educational, and governmental institutions in the City have
benefited from Mediacom's provision of these facilities and service,
Based on the needs and interests identified by the City, Mediacom must provide
cable drops and outlets to all schools and all facilities owned or leased by the City,
together with any converters, decoders, or similar equipment necessary to receive all
subscriber network services at each outlet. The signal strength provided must be
sufficient to allow the City to extend service throughout the site, as described more
specifically in the attached RFRP,
4.
Needs and Interests: Video-on-Demand
The City's needs and interests include video-on-demand capability for PEG access
use, Such capability would enable first City employees and later the public to request
archived material, such as specific classes or meetings, for review from a video retrieval
78 In addition, the City intends to use the I-Net to enable upstream feeds from any
I-Net site. This approach permits the City to allow for program origination from any such
site on particular occasions, while minimizing the number of dedicated feeds required.
Providing the dedicated upstream feeds indicated above, on the other hand, ensures that
the continuous upstream feeds from the access centers do not consume substantial I-Net
capacity,
79 See current Agreement at § 8.16.
40
system. Based on the needs and interests identified by the City, Mediacom must provide
the necessary file servers and other equipment to enable the public, educational, and
governmental entities that program the PEG channels to store programs for random
access and allow subscribers to search' for and retrieve such programs at will. Mediacom
should commit storage capacity for PEG video-on-demand in proportion to the number of
PEG channels as compared to the number of channels on the system as a whole.8O
s.
Needs and Interests: Generally
Wherever Mediacom must provide facilities and equipment for PEG use,
Mediacom must also provide such normal spares and backup facilities and equipment
(including, but not limited to, spare fibers) to ensure that all access channels can operate
seven days a week, 24 hours a day.
As a general matter, PEG applications should benefit from the same sorts of
technological improvements Mediacom brings to the system as a whole, as indicated
above81
c.
Institutional Network
1.
Background
Enhanced communication among institutions - such as schools, libraries,
government offices, and other public buildings - offers numerous ways to benefit City
residents through improved delivery of services, greater access to governmental
processes, and efficient, low-cost operations. Thus, in addition to other types of PEG
channels, facilities and equipment, a franchising authority may require as part of a cable
operator's proposal that the operator provide facilities and equipment, including
institutional network or "I-Net" facilities and equipment; and that the operator designate
channel capacity on an I-Net for educational or governmental use82 Such I-Nets connect
institutions serving the public, They may carry voice, video and data transmissions.83
80 See CBG Report at pp. viii, xi, 64, 72; CBG PEG Update at pp. 4-5.
81 See note regarding other resources on page 38.
82 See 47 U,S,C. §§ 544(b)(1) and 531(b) respectively. Cf § 541(b)(3)(D).
83 An I-Net is defined as a communication network which is constructed or
operated by the cable operator and which is generally available only to subscribers who
are not residential subscribers, See 47 U.S,C, §§ 531(t), 541(b)(3)(D), As noted above,
in this broad sense the term applies both to educational/governmental capacity and
facilities, and to a network serving other non-residential institutions, However, the term
is used here to refer only to the former. See p. 32,
41
The City benefits its taxpaying residents generally by obtaining I-Net facilities and
equipment as part of the reasonable compensation the City receives from Mediacom for the
company's use of the City's public ~ights-of-way. I-Net capabilities reduce the City's
communications costs, which would otherwise fall on the City's taxpayers. Thus, in-kind
compensation in the form of an I-Net provides significant benefits to City residents,
2.
Problems and Limitations of the Current I-Net
The Mediacom system in the City also incorporates an I-Net. This network, the
so-called B-Cable, however, is a coaxial copper cable system, separate from the
subscriber network. The 1980s technology involved results in serious quality and
reliability problems, due to the large number of amplifiers needed on a coaxial system.
As a result, the existing I-Net is not capable of meeting the City's needs and interests
over a renewal franchise term.84
3.
Needs and Interests: I-Net Applications
The City's needs and interests include an I-Net capable of supporting current
applications and of expanding its capabilities to support future applicationsS5 These
applications benefit the community by increasing the efficiency and decreasing the cost
of local government operations. Moreover, they directly benefit the public by enabling
access by individuals to City records through institutional sites, For example, one can
visit a City library and use a network terminal to access publicly available City records,
without requiring each library to store complete records in hardcopy and maintain them
in up-to-date form. Similarly, City libraries and schools can serve as gateways for high-
speed access to the Internet for City residents who do not have such access available at
homes6
Based on the needs and interests identified by the City, Mediacom must provide an
I-Net linking the sites listed in the chart attached to the RFRP, The I-Net must meet the
conditions specified above with respect to reliability, signal quality, safety, burden on the
public rights-of-way, flexibility, aesthetic issues, availability of end-user equipment,
capacity, interactivity, and suitability for the City's projected growth,S7
4.
Model I-Net Desil!n
Model standards for an I-Net meeting the City's needs and interests are set forth in
the attached draft RFRP. According to this model, the I-Net fiber should follow a ring/star
configuration, The ring, consisting of twelve fibers, would incorporate the West Third
S4 See CBG Report at pp. 73-76.
85 See CBG Report at pp, xi, 89.
86 See CBG Report at p,79,
87 See "Basic System Characteristics" outlined in Section II.C above.
42
Street hub site as well as the Asbury Headend. Such a ring design would provide for
redundant, fault-tolerant operation. The star portion of the I-Net would serve the non-
core sites, with six fibers running back to the designated ring or core site location, This
network layout would allow for versatility and expandability, and would provide
redundancy to the core site locations so as to minimize downtime due to line failures.
The core locations for each government and educational organization need to
have high capacity backbone infrastructure to the City Hall Annex and to the Headend in
order to provide program origination carriage when necessary.
In addition to core locations such as City Hall, the City Hall Annex, the County
Courthouse and the Carnegie-Stout Library, high-capacity fiber optic connectivity is
needed for a number of other specific locations, including, but not limited to:
. facilities in the America's River Complex
the Dubuque Regional Airport
the Fire Stations within the City
Eagle Point Water Plant
individual school locations, such as the elementary and secondary school
facilities of Dubuque Community Schools and the Holy Family Schools
Wartburg Seminary to the ICN POP
.
.
.
A few of the sites on the list attached to the model franchise agreement are
marked as potentially being eligible for service at cable modem ("CM") capacities, It
appears, however, that providing fiber to most of these sites may be no most costly than
setting up fully reliable and functional DOCSIS service. If Mediacom proposes using a
DOCSIS solution for this subset of sites, the proposal should show that such a solution
would have the same reliability and usability as would a direct fiber connection,
In addition, wherever Mediacom installs fiber for the subscriber network, it shall
also install at least six spare dark fibers for the institutional network, to ensure that future
sites can be connected with minimal need for further disruption of the public rights-of-
way, These fibers shall be separate from any fibers utilized for the subscriber network.
In addition, the I-Net (in the broad sense) should include fiber to each business
district in the City in sufficient amounts to meet foreseeable demands by business
customers.
In addition to providing the fiber connections specified above, Mediacom shall
provide a capital grant in the amount of $500,000 at the beginning of the franchise term
and, if the proposed franchise term is longer than five years, at the conclusion of each
five-year period that elapses since the beginning of the franchise term. These grants will
enable the City to move more quickly to utilize the dark fiber by providing support that
will permit the City to install I-Net electronics sooner than would be the case if it were
necessary to set aside the necessary funds over an extended period of time from the
City's budget. For maximum flexibility, these capital funds shall be unrestricted as
between I-Net and traditional PEG support, so that any part of each amount may be used
43
at the City's discretion for traditional PEG facilities and equipment or for I-Net facilities
and equipment. In this way the City will be able to allocate funds as appropriate to
"jump-start" both PEG and I-Net activities, and reallocate the ongoing capital grants
accordingly to ensure that both sets of activities are funded as effectively as possible.
Because the network will be used for voice communication and for similarly
critical data and video signaling, it must be reliable to a level comparable with that of the
telephone system, that is, 99,99% or better.88 With respect to data transmission, the
institutional network must be designed and operated to maintain a bit error rate of 1 x 10-9
or better. Prompt response for maintenance and repair will be necessary89
The I-Net fiber should be owned and maintained by Mediacom, with a perpetual
indefeasible right of use ("IRU") held by the City, This ownership arrangement provides
significant tax advantages to Mediacom: the company can depreciate the asset for tax
purposes, This advantage reduces the cost borne by Mediacom and thus any pressure to
increase subscriber rates, However, the City reserves the right to arrange for
maintenance of the I-Net at Mediacom's expense, if Mediacom fails to maintain it in
accordance with the reliability standards specified in the franchise agreement.
Notwithstanding the foregoing, the City may require, at its discretion, that maintenance
of the institutional network be performed by a third-party provider agreed upon by the
City and Mediacom. The City reserves the right to retain an independent engineer to
periodically evaluate the condition and performance of the I-Net at Mediacom's expense.
Precise construction standards and procedures are essential to ensure that the I-Net
performs correctly over the long term, Therefore, any renewal franchise would need to
incorporate the I-Net construction standards and procedures attached to the I-Net
Appendix of the model franchise agreement which is attached to the RFRP, Highlights
of these standards and procedures include the following:
Mediacom is responsible for checking with Iowa One Call to ensure that
installations do not damage other facilities, interrupt other services, or
create hazards.
.
Mediacom and the City's I-Net team must conduct joint site surveys to
agree upon the entry points, demarcation and termination points, conduit
routing and interior distance in a facility, based on the initial survey
package provided by the City. Mediacom personnel must come to site
surveys fully prepared for the necessary work, The specified survey
checklist must be used to ensure that all the necessary work is done at this
stage.
88 See CBG Technical Report at_,
89 See CBG Technical Report at_.
44
.
Mediacom must keep in touch by telephone with facilities where work is
being done, and keep in touch with the City regarding any incidents related
to the I-Net.
.
Construction materials must be new and meet the specifications outlined in
the I-Net attachment. They must be approved by the City prior to
installation.
Equipment must be installed in a neat and workmanlike manner, according
to the specifications in the standards and procedures attachment.
Mediacom must comply with manufacturer's specifications and
recommendations,
Grounding must meet the specified standards,
.
Mediacom must clean up and remove all debris when the work is done, and
make any necessary repairs to restore the site to essentially the same state
that existed prior to installation.
.
The City will inspect installed fiber and observe Mediacom's acceptance
tests, using the punch list form in the standards and procedures attachment.
Mediacom needs to keep the City apprised of its progress, including a
weekly updated project plan; confirmation when fiber has been terminated
in each facility; a weekly forecast of forthcoming work; and fiber test
reports submitted bye-mail.
.
Mediacom must supply as-built documentation in soft- and hardcopy
formats as specified by the City.
Such procedures are essential to resolving difficulties, ensuring timeliness, and ensuring a
smooth construction process.
To ensure that the benefits of the I-Net are not unduly delayed, particularly with
regard to public safety applications, and to minimize disruption in the City due to
construction, Mediacom will be required to complete I-Net construction and to have the
system fully operational within four years after the effective date of a renewal franchise
agreement. Mediacom should complete construction of36% of the I-Net plant by the end
of the first year after the effective date of the franchise, an additional 30% by the end of
the second year, an additional21% by the end of the third year, and the remaining 13%
by the end of the fourth year. To ensure that the sites constructed according to this
schedule can be activated in order according to the City's priorities, the City shall
determine the order in which sites are constructed,
Mediacom shall provide repair and/or replacement of fiber-optic plant in the event
of damage or failure. Mediacom shall respond to such damage or failure within two
45
hours of notification and complete repairs according to the schedule set forth in the I-Net
appendix to the franchise agreement.
The City and I-Net users designated by the City shall have exclusive use of the
entire capacity of the institutional network. The City shall have authority to resolve any
disputes regarding allocation on-Net capacity,
The I-Net constructed for educational and governmental use shall be for
noncommercial use. But to ensure that the I-Net network is as useful and as cost-
effective as possible, the City shall have the right to connect it with other networks, such
as the Internet or the public switched telephone network. The City itself (or through a
third party or contractor) may also choose to construct additional fiber or other facilities,
aside from the I-Net construction to be carried out by Mediacom pursuant to the
franchise, and to connect such other facilities with the I-Net. But such connection or use
shall not grant Mediacom any rights, or give up any rights of the City, over facilities not
constructed by Mediacom. For example, and without limitation, facilities not constructed
by Mediacom shall not be restricted to noncommercial use. Any restriction on the use of
such non-Mediacom facilities would unreasonably limit the City's rights over its own
property, or that of third parties,
If Mediacom proposes a different way of meeting the City's I-Net needs and
interests, then as with the subscriber network, Mediacom must show that its proposed
system would meet those needs and interests at least as well as would the model.
5.
How the Model Meets the City's Needs and Interests
The I-Net model outlined in the RFRP will meet the City's needs and interests as
described above, Sharing of databases, files, and multimedia resources, including City
records and GIS information, along with e-mail, could be carried on seamlessly with the
I-Net. The model system provides for switched voice connections, addressing the City's
needs and interests for internal telephone services. Similarly, the model's capability to
transmit video would allow video conferencing, distance leaming, training programs,
surveillance and security functions. Internet connectivity through the I-Net would assist
vendors in carrying out electronic transactions with the City. Similar gateways could be
used to connect the I-Net with the City's public safety radio and with satellite uplink
facilities, Generally speaking, the flexibility and broad capacity of the model system
would allow the City to fulfill these needs and interests, and to address further needs and
interests that may develop over the coming franchise term,
It should be emphasized that the model I-Net is not a purely internal City system,
While the system can and should be used for internal City communications, many of the
designated sites are at schools and libraries, where they may be accessed by the public.
Thus, while the network will be used partly to allow City departments to communicate
with one another, it will also assist members of the public in communicating
electronically with the City and gaining better access to the City's resources.
46
D.
Capital Grants
As noted above, support for equipment and facilities is necessary if the community
is to make effective use of its PEG access channels9o Equipment must be purchased and
replaced over time; facilities must be upgraded and modified to satisfy changing needs;
office equipment and related support structures (computer systems and software, discs,
furniture, and so forth) must be obtained and replaced, These costs are distinct from
plant and network costs, such as the costs associated with switching signals at the
headend. Thus, in addition to the specific facilities and equipment outlined above,
Mediacom must provide capital funds for facilities and equipment to be used in
conjunction with the PEG channels and I-Net, ifthe City is to satisfY its PEG-related needs
and interests.
The following analysis reviews the needs and interests identified for each type of
access - public, educational, and governmental - and then draws general conclusions as
to the total access commitment required from Mediacom, taking into account those three
types of needs and interests.
1.
Needs and Interests: Public Access Capital Grants
The continued success of the City's public access operation requires continuing
support. The CBG Report notes that public access programmers have indicated needs for
additional capital funding91 At the same time, it is clear that no one can predict precisely
over a long franchise term what specific developments will be necessary, due to the
continuing changes in technology and production standards (for example, the shifts to
digital video and nonlinear editing), One can only seek to develop sound estimates based
on concrete information now available, extrapolated over the course of a franchise term.
CBG has estimated the level of support required to meet public access needs, based on
current information, at approximately $1,594,00092 Thus, the needs and interests of the
access operation support a conclusion that Mediacom should be required to provide at
least that amount in capital support for public access.
2.
Needs and Interests: Educational Access Capital Grants
Educational access programming in the City predates the current 1981 franchise.
The City's schools and institutions of higher education have made extensive use of the
cable system and related technology in the past. But as with the public access assets
referred to above, educational access facilities and equipment too must be repaired,
replaced, and upgraded to meet the City's needs and interests.
90 See discussion on page 39.
91 CBG Report at 50-54, 73.
92 See CBG Report at p. 11,
47
The CRG Report indicates that the City's educational access programmers have
continuing needs for additional funding93 CBG has estimated the level of support
required to meet public access needs, based on current information, at approximately
$1,526,00094 Thus, educational needs and interests support a conclusion that Mediacom
should be required to provide at least that amount of capital support for educational
access. These needs and interests must be considered together with the other needs and
interests of the Franchise area, as discussed in § V,D.4 below,
3.
Needs and Interests: Governmental Access Capital Grants
As with the public and educational access programs described above, the City, as
governmental access programmer, also has continuing capital needs95 CBG has
estimated the level of support required to meet public access needs, based on current
information, at approximately $1,049,00096 Thus, governmental needs and interests.
support a conclusion that Mediacom should be required to provide at least that amount of
capital support for governmental access, These needs and interests must be considered
together with the other needs and interests of the Franchise area, as discussed in § V.D.4
below.
4.
Needs and Interests: Capital Grants Generally
City staff believes that the best structure for the capital grants described above is a
percentage of gross revenues. Basing capital grants on gross revenues ensures that the
PEG program shares in the benefit of any increases in revenues that benefit the rest of the
cable system, Conversely, if the system's revenues decline, a capital grant arrangement
keyed to gross revenues will automatically adjust to reduce the burden on the cable
operator to a corresponding degree, and thus also to reduce any pressure on the operator
to increase subscriber rates, in a way that a fixed dollar grant does not. A percentage
approach thus scales automatically to take into account the degree to which a given cost
burdens the cable operator.
Moreover, if an overbuilder should enter the market in the City, it will be
important to be able to maintain comparable burdens among cable companies of
markedly different sizes (such as a start-up overbuilder that would begin with no
subscribers and no revenues), That is most effectively achieved when the burden is borne
proportionately on a gross revenue basis. A percentage approach is thus a means by
which the City can encourage fair competition.
93 See CRG Report at pp. 93-97, 106.
94 See CRG PEG Update at p. 9,
95 See CRG Report at pp. 65-72,
96 See CRG Report at p, 13.
48
The cable franchise fee is based on a percentage of gross revenues, But federal
law currently caps that fee based on a percentage of a particular subset of the operator's
gross revenues - those for cable service97 There is in fact no good reason for such a
limitation: the value Mediacom realizes from its use of City property includes all the
revenue it derives from the system in the City, whether or not for cable services.
Moreover, it is impossible to predict with certainty how changes in federal or state law
may affect the scope of "cable service" during a renewal franchise term, For example,
the City has already experienced serious losses in revenue from the FCC's 2002
reclassification of cable modem Internet access as a noncable service.98 Thus, the most
reasonable way to ensure that adequate PEG capital funding is provided over the course
of a franchise is to base PEG capital support on a percentage of all gross revenues from
the system in the City, not merely those from cable service. Since the amount of capital
support for access is not bound by any federal limitation comparable to the five percent
cap on franchise fees, such a standard can be established in a franchise without
conflicting with federal law,
It appears that the PEG capital support amounts listed above for public,
educational and governmental access - a total of approximately $4,169,000 - equates to
about 2.2 percent of Mediacom's gross revenues from the system in the City, based upon
current information as to those revenues, Thus, in addition to paying any franchise fee
required under a franchise agreement, and in addition to any amounts expended to
comply with any other requirements (including but not limited to construction of the I-
Net and lump-sum grants for I-Net equipment as described herein), Mediacom should
provide capital grants to support PEG access in the amount of two and one-half percent
(2.2%) of Mediacom's gross revenues derived from the operation of the cable system
(regardless of the service involved).
5.
Needs and Interests: PEG Equipment and Facilities Generally
Consistent with federal law and the City's ascertainment, PEG users must be able
to use the facilities and equipment discussed above (including the I-Net facilities and
equipment) at no charge from Mediacom.
VI.
OTHER FRANCHISE TERMS AND REGULATORY CONDITIONS
In addition to the matters already discussed, a renewal franchise agreement must
contain a number of provisions to determine the reasonable implementation of the
franchise requirements Mediacom proposes to meet the City's needs and interests. In
97 See 47 U.S.c. § 542(b) (phrase "to provide cable services" added in 1996
amendments),
98 See FCC Declaratory Ruling, op. cit.
49
addition, both the franchise agreement and City law must contain provisions to protect
the City and its citizens, including cable subscribers, and to enable the City to manage its
public rights-of-way fairly and effecti,;ely.
The City has reviewed the provisions in the current franchise agreement and the
City Code, The model proposed franchise agreement attached to this Report indicates
what franchise terms, when joined with a reasonable proposal by Mediacom meeting the
City's future cable-related needs and interests, are necessary to ensure that the franchise
agreement is reasonably implemented and that the City and its citizens receive the benefit
of that agreement. In addition, any renewal franchise will be subject to a revised and
updated version of Chapter 44 of the City Code (a copy of which is also attached), as it
may be amended from time to time pursuant to applicable law. The Staff finds that terms
and conditions such as these are necessary to meet the City's needs and interests. Any
proposal from Mediacom must at least match the provisions of the model consisting of
those two franchise documents if it is to meet those needs and interests.
The following brief discussion of certain key provisions is intended to elaborate on
the reasons underlying those provisions. This discussion is not intended to be
comprehensive, Many of the needs and interests treated below are fundamental to the
franchising process and in many respects are shared with other local franchising
authorities.
A.
Term
The length of the franchise is primarily a policy decision for the Council. As the
City noted, given the rapidity with which communications technology is developing and
the market is changing, a fifteen-year franchise may well be too long. The City's ability
to predict the effect of these changes on the City, and to draft legal documents that
adequately protect against the harm that may flow from the changes, is inherently limited,
As noted above in Section ILc.6, Mediacom must justify the length of its
proposed term by showing how its proposal will protect the City against the risk that its
cable system may be obsolete long before the next renewal opportunity, as well as
showing that its proposed tenn is necessary for the company to recover a fair return of
and on its investment. If Mediacom's proposal follows the model set forth in this Report
and the RFRP, that risk should be relatively limited, If Mediacom proposes a different
scheme, it will be correspondingly more important for the company to demonstrate that
its proposal prevents the risk of obsolescence, To the extent the Council finds that
Mediacom has not justified a proposed term on that basis, the Council will award a
shorter franchise tenn.
B.
Franchise Fees and Other Benefits
Franchise fees shall be paid annually in advance, and trued up at the end of each
quarter, pursuant to the procedure set forth in Section 8.6 of the current franchise
agreement, which has worked well during the term of that agreement. Under that
procedure:
50
The amount due on or before the first business day of the City's fiscal year
shall be no less than ninety percent (90%) of the total franchise fees
anticipated to be due for that year, as determined by the local regulatory
agent at least ninety (90) daýs prior to the beginning of the applicable
fiscal year and communicated to the Grantee.
No later than the twentieth (20th) day after the end of each fiscal quarter,
the Grantee shall report to the Grantor in such detail as the Grantor's
regulatory agent may require, its gross revenues for the immediately
preceding fiscal quarter, and shall remit therewith the amount by which
any fee due for that fiscal quarter exceeds twenty-five percent (25%) of
the amount due on account on the first day of that fiscal year. In the event
the amounts paid the Grantor during the year exceed the total amount due
for that year, the excess shall be refunded to the Grantee within twenty
(20) days after its filing of its fourth quarterly report and it giving the City
notice that a refund is due.
Failure by Mediacom to pay the correct franchise fee in a timely way would
deprive the City of amounts it is owed, and cause the City to incur additional costs to
audit and correct Mediacom's errors, Thus, the franchise fee provisions need to include
enforceable informational and auditing requirements, incentives for prompt payment, and
ways to make the City whole if timely payment is not made.
c.
Scope of Grant
Current federal law draws a distinction between cable systems and
telecommunications systems, and suggests that to the extent telecommunications systems
are authorized and regulated by local governments, this ought to be done separately from
a cable franchise99 In particular, changes in the Cable Act made by the
Telecommunications Act of 1996 indicate that a cable operator is not required to obtain a
franchise under the Cable Act for the provision of telecommunications services; and that
a franchising authority may not impose any requirement under the Cable Act that has the
purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a
telecommunications service by a cable operator or its affiliate (other than through an
institutional network),100 By restricting these prohibitions to franchises issued under the
Cable Act, however, Congress indicated its intent to permit state and local governments to
require appropriate compensation and to manage their public rights-of-way through
instruments other than franchises under the Cable Actl01 Thus, it appears to be the intent of
99 See, e.g, 47 U.S.c. §§ 153(43)-(46),522(6)-(7),
100 See 47 U.S.c. § 541(b)(3).
101 Cf 47 U.S.C. § 253(c) (recognizing state and local governments' right to
manage the public rights-of-way and to require fair and reasonable compensation),
51
Congress that the two be treated separately. For this reason, among others, a renewal
fTanchise for Mediacom should only authorize the company to use the City's public rights-
of-way for the provision of cable servi~e.
D.
Transfers
The City's decision to grant a franchise is based on the expectation that the
Mediacom will be the person who will carry out the franchise obligations. Decisions
must be made about whether its proposal meets the community's cable-related needs and
interests, about its financial and technical ability to perform, about its honesty, about the
risk of nonperformance and similar matters. A transfer may affect these and other
conditions, It may result in the City's being faced with a transferee to which the City
would not have granted a franchise had it applied, or on which the City would have
imposed different terms and conditions due to the differences between the cable
operators. Thus the City must have the opportunity to review a transfer, to determine the
likely impact on performance of the franchise and the community, and to grant, grant
with conditions, or deny the transfer based on the reasonably predicted impact. Except as
the Communications Ordinance or federal law otherwise requires, the term "transfer"
should be construed broadly to include any number of transactions that may result in the
transfer of all or a portion of the franchisee's interests in the cable system or the franchise,
or a change in the control of the franchisee itself.
E.
City's Exercise of Police Powers and Modification of Applicable
Rules and Ordinances
The City has the legal authority to utilize its police powers (and other
governmental authority, to the extent this is distinguished from police power) to secure
and promote the public health, safety, and general welfare, In particular, because of the
technical, economic and regulatory volatility of the cable industry, the City must have
regulatory flexibility if it is to meet its duty to the public while still granting a franchise.
Accordingly, any renewal franchise must preserve the City's police powers,
governmental authority, and regulatory flexibility to the maximum extent compatible
with granting a franchise and with applicable law, The attached proposed franchise
agreement recognizes the City's right to establish reasonable rules and regulations, which
may be changed over the franchise term, consistent with applicable law, as required to
protect the public health, safety, and general welfare,
While courts have reached varying results in interpreting this provision, the intent of
Congress is clear. See Ellrod & Miller, op. cU.
52
F.
Compliance with Applicable Laws
Many matters governing the operation and business practices of Mediacom are
addressed by federal and state laws anti regulations, 102 The City's grant of any franchise
is based on the assumption that the grantee would comply with such laws and regulations.
Thus, Mediacom's compliance with applicable law is essential to the franchise and must
be a condition of the continuation of the franchise under any franchise agreement.
G.
Severability
Through the franchise, Mediacom is granted special rights to use unique public
rights-of-way, To ensure that the operator does not essentially convert valuable City
property to private purposes, among other reasons, the City imposes conditions on the
operator's use of the rights-of-way to ensure that the City shares in the benefits that flow
from the franchise grant. The grant would not be made, or would be made on different
terms and conditions, if those benefits were not received.
Franchise fees are imposed to help compensate the community for use of the
public rights-of-way. However, as noted above, franchise fees are subject to a federal
limitation that prevents the City from simply charging the fair value of the property
Mediacom uses,I03 In the proposed RFRP, the difference between the fair value of the
City's property and that limited franchise fee is made up by the PEG and I-Net support
and other benefits provided by Mediacom, The combination of all these benefits
represents the full compensation due to the City for Mediacom's use of the public rights-
of-way.
It is essential that this balance of benefits be maintained over the life of a renewal
franchise. Undercharging Mediacom harms the City, and distorts marketplace economics
by giving away valuable resources at below-market prices to certain users - in effect,
subsidizing Mediacom by use of resources that belong to the City as a whole, Thus, the
City must have the right to maintain the balance of benefits struck in the original
franchise agreement. Yet changes in federal or state law over a franchise term could
prevent the City from obtaining some of those benefits. It is impossible to predict how
such changes might be made, or what sort of lawful reconstitution of the franchise
agreement might be necessary to restore the original balance while remaining consistent
with then-current federal and state law, For this reason, the franchise agreement should
require Mediacom and the City to engage in good-faith negotiations to restore that
balance if it is changed by federal or state law.
102 See, e.g., 47 U,S,c. §§ 554 (equal employment opportunity), 543 (rate
regulation), 532 (leased access channels).
103 See 47 U,S.C. § 542(b).
53
H.
Insurance Requirements and Indemnification
Insurance and indemnification requirements are included in Mediacom's current
franchise. 104 In order to ensure that'the City is adequately protected from damage or
liability caused by Mediacom's operations, such requirements, updated appropriately for
present-day conditions, are needed in any renewal franchise.
I.
Liquidated Damages
If the City is to achieve the benefits intended under a renewal franchise, it is
essential that Mediacom comply with applicable law and with its franchise agreement.
The cable industry's record of compliance with its obligations has been uneven, In those
instances where the harm to the City or community is definable, the franchisee must
compensate the injured party in that amount. In some instances, however, the dollar
value of the damage is difficult to compute. In these instances a liquidated damage
amount must be set which is a reasonable estimate of the damage, but not intended to
penalize the franchisee. The franchise agreement should include such a schedule,
J.
Penalties
As noted above, Mediacom must comply with its franchise agreement and
applicable law if the benefits intended in that agreement are to be achieved. One means
by which the City may ensure this result is through penalties in its renewal franchise that
may be applied as incentives for Mediacom's performance of its duties and compliance
with the law, without the disruption involved in applying or threatening the extreme
remedy of termination (including the procedural steps necessary to protect all parties'
rights in the event of termination), Staff recommends that to the extent that penalties are
applied to a franchisee, it would not be subject to liquidated damages for the same
violation.
K.
Termination
To ensure that Mediacom honors its franchise, the City must also provide for more
serious remedies. These remedies - revoking or shortening the term of the franchise - are
severe and reflect the seriousness of the conditions giving rise to their imposition. Any
business relationship depends upon a satisfactory working relationship between the
parties. No working relationship can be established and maintained if the franchisee lies
or attempts to deceive, refuses to comply with key provisions of law or its agreed-upon
obligations, or repeatedly violates law or its agreed-upon obligations,
Additionally, given that Mediacom is the sole provider of cable service in the
franchise area, it is important that subscribers not be disadvantaged by such potential
misbehavior. Thus, a renewal franchise must make clear that in the event of termination,
104 See current Agreement at § 10.4.
54
Mediacom must ensure continuity of service for a reasonable time until a new cable
operator begins to offer service,
L.
Relationship of Remedies
The public's compensation for harm suffered should be as full and complete as
possible, Thus, remedies must not be exclusive (except as noted above). Mediacom's
franchise terms must ensure that those who use public property for business purposes
bear the entire risk of that activity.
M.
Security Funds
For reasons similar to those relating to insurance and indemnification above, the
City requires that Mediacom under its current franchise maintain funds on which the City
can draw as necessary to ensure that the City or other affected parties can be fully and
promptly compensated for any damages, and that any necessary penalties or liquidated
damages can be promptly recovered from the company. Currently, Mediacom maintains
a performance bond in the amount of $500,000, in accordance with Section 10,3 of the
current Franchise Agreement, and a security deposit of $100,000, in accordance with
Section 10.2. With any cable operator, it is important to have funds available that secure
performance, so that the operator cannot violate franchise provisions with impunity,
leaving it to the City to bear the expense of going to court to protect itself or consumers.
Whenever a violation occurs, funds must be readily available to pay for the resulting
harm.
Accordingly, under any renewal franchise Mediacom would be required to
maintain a performance bond and security deposit in comparable amounts, adjusted for
inflation: a bond of approximately $1 million and a security deposit of approximately
$200,000, each to be replenished to the full original amount whenever drawn upon, to
cover both construction-related claims and any penalties, liquidated damages, or other
payments that may become due, Both instruments must be included in a new franchise.
N.
Abandonment
Any renewal franchise would be granted in return for Mediacom's promise to
provide service throughout its franchise area in accordance with the franchise agreement.
Thus, a renewal franchise must ensure that the cable system can be kept operating, even
if Mediacom were to breach its agreement and stop providing service. Thus, any renewal
franchise must contain provisions to protect the City from a total or partial abandonment
of the system.
o.
Conditions on Use of Public Rights-of-Way
Franchises, from the beginning, have sought to protect public property used by
utilities and others from harm and to insure that the property could be used by others. For
example, a franchisee may need to cut open a road or bore under it to install or repair a
55
line. Improper restoration can leave a permanent bump or depression in the road, or even
cause it to collapse. Thus, Mediacom's current franchise is subject to conditions
regarding the use of the public rights-of-way in its Agreement.105 It is essential that a
renewal franchise continue to protect' City property and make it safe and available for
multiple users, including other utilities, particularly given the growth in right-of-way use
by communications companies of all sorts over the past ten years. The conduit
requirements discussed above represent one way of protecting the community against
unnecessary, repeated trenching and construction. The City must have the flexibility to
establish standards and procedures over time as required to strike an appropriate balance
between Mediacom's interests in placing wires and cables pervasively throughout the
City, and the varied interest of other entities and the general public in obtaining or
sharing access.
P.
Customer Service Provisions
The failure of cable operators to provide good customer service received national
recognition in the 1992 amendments to the Cable Act and the minimum customer service
standards adopted by the FCC.1O6 Those federal standards, however, recognize that
additional or more stringent standards may need to be adopted by particular localities,
based on specific conditions and on the behavior of particular cable companies. 107
The record shows that the cable industry as a whole is subject to widely varying,
but frequently poor, performance with regard to customer service. Local communities
have frequently found that changes in management, in market conditions, or simply in an
MSO's policies may lead to substantial customer service problems even in areas formerly
characterized by reasonably good customer relations. Hence, the proposed Ordinance
adopts the federal minimum standards to establish initial basic standards for consumer
protection, while leaving the City free to adopt additional or more stringent requirements
as circumstances - or abuses - may require. Such provisions are applicable to any and all
cable operators in the City.
Q.
Rate Regulation
In 1992, Congress determined that it was necessary to protect subscribers from
unreasonable rates for cable service and equipment. The City recognizes that rates are a
significant source of subscriber complaints. At the same time, the FCC's current regime
of rate regulation is unsatisfactory in many respects, Thus, the City should reserve its
rights with respect to rate regulation in any renewal franchise,
105 See, e.g., current Agreement at § 7.6.
106 See 1992 Act, 106 Stat. 1484 (Oct. 5, 1992), § 2(b)(4)-(5); 47 U.S.c. § 552; 47
C.F.R. § 76.309.
10747 C.F.R. § 76.309(b).
56
The CBG Report includes comments and recommendations from citizens and
institutions regarding needs and interests for affordable prices and discounts for cable
system services. In particular, caregivers and community service organizations that serve
senior citizens have noted the benefits of reduced rates for Internet access for the
population they serve,I08 Pursuant to federal law, the RFRP does not include specific
requirements with respect to such rates or discounts,
R.
Reports and Records
Mediacom's current franchise is subject to provisions regarding books, records,
inspections, audits, reports, and similar requirements.l09 These provisions are included
for several purposes: for example, so that the City is able to determine whether the
operator is complying with the franchise and with applicable law; whether the franchisee
is paying the required fees; and whether the City should be taking additional steps to
protect its interests and those of subscribers, Mediacom must maintain open records and
submit regular reports to the City - among other things, to help the City identify
problems with the company's performance and ensure that those faults are corrected,
s.
Non-Discrimination
Federal law expressly recognizes the need to include provisions prohibiting
discrimination among subscribers or persons requesting cable service in a franchise or
cable ordinance. 1 10 Such provisions reflect the City's needs and interests in ensuring that
the widest possible range of City residents have access to cable service, and that
Mediacom, as an entity receiving public benefits, must deal fairly with all segments of
the community in utilizing those benefits. Any renewal franchise must recognize that the
City will maintain provisions to prevent discrimination.
T.
Other Matters
As noted above, the discussion above is not exhaustive. Mediacom's proposal
must include any provisions reasonably necessary to ensure that the proposal meets the
City's needs and interests.
108CBGReportatpp.14,31-32,34..
109 See, e,g., current Agreement at §§ 8.1, 8.2,
110 See 47 U.S.C. §§ 541(a)(3), 543(e).
57
PART 3: FINANCIAL ISSUES
I.
FINANCIAL OUALIFICATIONS
In this Report's analysis, City staff has taken into account the cost of each future
cable-related need and interest and finds it reasonable to require Mediacom to meet those
needs and interests, The level of commitment expected of Mediacom is similar to that
found in other franchise agreements. Moreover, the attached draft RFRP requests
Mediacom to provide detailed financial infonnation that may be used to confirm or refute
any claim that particular requirements are not reasonable.
To the extent that Mediacom claims that it cannot or will not meet the City's needs
and interests due to cost, Mediacom must demonstrate its financial claims in its proposal,
showing all assumptions and providing full supporting information sufficient to allow the
City to replicate Mediacom's analysis, including but not limited to full information
regarding Mediacom's revenues and profits at both the system level and for each parent
company. At the same time, pursuant to federal law, Mediacom must also show among
other things that it has the financial ability to provide the services, facilities, and equipment
set forth in its proposal. III
Mediacom is solely responsible for providing sufficient infonnation in its proposal to
satisfY any reasonable person that these requirements have been met. At the same time, to
enable the City to resolve any potential disputes over the adequacy of such information, the
City reserves the right to require Mediacom to provide such further financial data, at the
times and in the manner prescribed by the City, as the City reasonably deems necessary or
useful to resolve any financial issues. Because the City's review of any proposal may be
subject to specific deadlines under applicable law, Mediacom must provide all relevant
infonnation at the time of the proposal itself, and must be prepared to respond to any further
infonnation requests according to deadlines set by the City, Mediacom must also agree to
toll the City's deadline for acting on a proposal at the City's request if Mediacom is unable
or unwilling to produce requested information according to deadlines set by the City. To the
extent pennitted by applicable law, failure to provide such financial information may serve
as a basis for denial of Media com's proposal.
II.
COMPETITION
In the City, just as Congress found for the nation as a whole, the incumbent cable
operator is not yet subject to real competition.112 The City strongly favors fair and
vigorous competition in the provision of cable service, Prospective cable operators are
III See 47 U,S.C, § 546(c)(1)(C).
112 See 47 U,S,c. § 543(/); 1992 Act at § 2(a)(2),
58
encouraged to contact. the City, which will make every effort to facilitate competition in a
manner consistent with state law,
Under federallaw, however, Mediacom's renewal proposal must be evaluated on
its own merits, based on the criteria specified in the federal Cable Act. A franchising
authority may not declare a cable operator's proposal umeasonable and deny renewal
based on another party's willingness to provide a more attractive offer. I 13 Thus, while
the City welcomes potential competitive applications, the review of Mediacom's renewal
proposal is not - and under federallaw cannot be - a competitive bid process.
113 See 47 U,S.c. § 546(c)(1); 1984 House Report at 74.
59
PART 4: MEDIACOM'S PAST PERFORMANCE; CONCLUSION
The City has briefly reviewed Mediacom's past performance under its current
franchise, It does not appear that any of the faults identified has had a major impact on
Mediacom's overall performance. However, where necessary, the above description of
the City's needs and interests takes into account such previous difficulties in determining
what terms and conditions would be required in any renewal proposal in response to the
RFRP,
In order to qualify for a renewal of its franchise, Mediacom must meet the City's
future cable-related community needs and interests, taking into account the cost of meeting
such needs and interests, and demonstrate the financial, legal, and technical ability to
provide the services, facilities, and equipment as set forth in its proposal.
If this Report is accepted, the City shall issue the attached draft Request for
Renewal Proposals, and require that the proposal demonstrate that Mediacom fully meets
all the conditions set forth in this Report and the Request, before the Council considers
whether to grant a renewal franchise to Mediacom.
60
CABLE RIGHT-OF-WAY ORDINANCE
CITY OF DUBUQUE, IOWA
[date]
CABLE RIGHT-OF-WAY ORDINANCE
CITY OF DUBUQUE, IOWA
Page
TITLE 1: GENERAL PROVISIONS ................................................................................................ 4
1. Legislative Findings ."..,......,."..".".....".".."."...,....."."..,..".,..,..,..,..,.".".....,.".",.,4
2. Purposes..,.."..,..,..".....".".".."..,..,.."."..".,....".".",.".".."....".".".".,..,..,..,.""".".. 4
3. Rules of Construction"........"."..,..",....".".",.",.".,......"."",.".".,.....".".""".......,.5
4. Definitions ".,.."....,...".",.".,......"."""."..,......,...""".""".........."""".,.........""",.., 5
5. Authority ."."."."..".".",.".,...".".",."."........",.",."."..,........".".".".,......",."""..",7
6. Reservation of Rights: Police Power....................................................................... 7
7. Title".""..,.".."."."..,.."."..,..,...,.."."..,..,.......".",."."..".,......,..,.".".".,........"."."", 7
8. Authorization Required....,.".",."."..,.."..".".",."..".....,."."",..".,........,."."",........7
9. Construction Standards.."""........,..".",.".,.......,.....".","""."....,..".,.""""........".,7
10. Placement of Facilities, ...................................,............................,................,..,...... 9
11. Relocation of Facilities. ........................................................................................ 10
12, Restoration. .."."..,.",.".".."."..,..".".",."..".....,..".,".".",.,.."....,."""".".,........",,10
13. Work Permits ....................................................................................................... 11
14. Business license ................................................................................................... 11
15. Reimbursement of Costs ...................................................................................... 11
16. Administration,.""".",........"",."."..,..".....,,"",.".."."",.....,...,.".".".".........."",., 11
17. Audits,.."."""",........".".".."........".",.,,.".."",........."."""."."",..........,."""",......12
18. Reports and Records...".,...,...,.".",."."..,...........,.".",.,,."",..,...........,.".".".,.,...... 12
19. Bond or Letter of ..Credit...............................................,.......................,..,........... 14
20, Insurance..."."."""."......,.".."."..,...,..,..,..,,.",.",.""".".,.,........."",.".".".,..........,,14
21. Enforcement.".".,......,..",."."."..,.."..".".",.,,.",."..".".,......,..".".,..,."",.....,.".",., 14
22. Indemnification.."....."."..,..".".".....".",."."..,,..".,...,.....".".".".".,..,..,..,..,.",.".,,16
23. Severability .".""".,.....",."."""."",......,.",.".",.".."."",......,..,.".".".""..,.....,..,.",17
TITLE 11
1.
2.
3.
4.
S.
6.
7.
8.
9.
10.
11.
12.
CABLE COMMUNICATIONS."."",............".",."""."."..,,.,............,.".".".".,...........17
General Provisions ...............................................................................,..,.............17
Grant of Franchise ..".",."."..,..".".........".".",.".",."..,...,..,..............."""""".......22
Construction Standards ".",."."",..,..,...,..".",.".",."",.."."..,.,..,......."",.""""",..29
Use of Public Property......".".",."."..".,....,................,.,,..".".".""""..............,.".30
Interference with Public Projects ......................................................................... 31
Consumer Protection,.,.....,.."."..,..".".."..,.."...,..,.....".,,.."""""."."",.,......,.....,.,31
Rate Regulation ..,...,.".."."."..,.."..,...,.....,...,..".."."..,..".,,.".".".".,.........,.".".",,41
Franchise Fee ,."..,..........,.".",."."",..",."..,...................,...,."",."""....,...............,.41
System Tests and ..Inspections.......................,........................................,..,......... 42
Insurance....,........"."""."."..,...,."..,.........,,.".",."""."""""".".""........,."."","".,43
Reports and Records - Cable..............................................................................., 44
Performance Guarantees And Penalties ............................................................... 47
2
13.
14.
15.
Transfers ,."."..,..,.."."..".,....,.".".".........".".",.".....,...,..".".".".,.......".".".,..,.....49
Rights Of Individuals Protected...............................,.......................,................." 53
Miscellaneous Provisions...,.".".",.,......".".",.""".,.........".""".",..........".",......,.54
TITLE Ill: OPEN VIDEO SYSTEMS............................................................................................,54
1. Applicability of Ordinance. .................................................................................. 54
2. Application for Open Video System Authorization. ............................................ 55
3. Fee In Lieu of Franchise Fee.................................................................................. 55
4. Public, Educational, and Governmental Access Obligations. .............................,55
5. Right-of-Way Usage,......".".",.".".,..........".",."""."."."..,.......,.."."",.".,...........56
3
TITLE I: GENERAL PROVISIONS
ORDINANCE NO, --
AN ORDINANCE AMENDING T'HE CODE OF ORDINANCES OF THE CITY
OF DUBUQUE, IOWA, BY ADOPTING A NEW ORDINANCE NO, - TO
REGULATE THE CONDITIONS REQUIRED AND MANNER OF USE OF
THE PUBLIC RIGHTS-OF-WAY,
Be it ordained by the Council of City of Dubuque, Iowa as follows:
Section 1.
The Code of Ordinances of the City of Dubuque, Iowa is hereby amended by adding the
following:
TITLE I: GENERAL PROVISIONS
1. Legislative Findings
The City Council hereby finds and declares:
(1) that the public rights-of-way within the City can be partially occupied by
public utilities and other service entities for facilities used in the delivery, conveyance, and
transmission of services rendered for profit, to the enhancement of the health, welfare, and
general economic well-being of the City and its citizens;
(2) that the public rights-of-way within the City are physically limited so that
proper management by the City is necessary to maximize the efficiency and to minimize the
costs to the taxpayers of the foregoing uses, to prevent foreclosure of future uses through
premature exhaustion of available right-of-way capacity, and to minimize the inconvenience to
the public from such facilities' construction, emplacement, relocation, and maintenance in the
rights-of-way;
(3) that the use of the public rights-of-way by multiple users renders more
pressing the City's right-of-way management responsibilities;
(4) that the public rights-of-way within the City are valuable public property
acquired and maintained by the state and the City at great expense to the taxpayers: and
(5) that the right to occupy portions of such public rights-of-way for limited
times for the business of providing utility and cable services is a valuable economic asset
2, Purposes
The City Council adopts this ordinance to better-
(1)
manage a limited resource to the long-term benefit of the public:
TITLE I: GENERAL PROVISIONS
(2)
recover the costs of managing the public rights-of-way;
(3) minimize inconvenience to the public occasioned by the emplacement and
maintenance of facilities in the public rights-of-way:
(4) prevent premature exhaustion of capacity in the public rights-of-way to
accommodate communications and other services; and
(5) promote competition in the provision of communications service in the
City and ensure that citizens have a wide variety of services available to them by establishing
clear and consistent rules by which providers may occupy the public rights-oF-way.
3. Rules of Construction
When not inconsistent with the context, words used in the present tense include the
future tense; words in the plural number include the singular number, and words in the singular
number include the plural number; and the masculine gender includes the feminine gender.
The words "shall" and "will" are mandatory, and "may" is permissive.
Unless otherwise specified, references to laws, ordinances or regulations shall be
interpreted broadly to cover government actions, however nominated, and include laws,
ordinances and regulations now in force or hereinafter enacted or amended.
4, Definitions
For the purposes of this Ordinance, the following terms, phrases, words, and
abbreviations shall have the meanings given herein, unless otherwise expressly stated. Unless
otherwise expressly stated, words not defined herein shall be given the meaning set forth in
Title 47 of the United States Code, as amended, and, if not defined therein, their common and
ordinary meaning.
(1) Affiliate, when used in relation to any person, means another person who
de facto or de jure owns or controls, is owned or controlled by, or is under common ownership or
control with, such person.
(2)
City. City of Dubuque, Iowa, and any agency, department, or agent
thereof.
(3) Citv Manager means the person appointed pursuant to City of Dubuque
Code of Ordinances § 2-105.
(4) Communications Facility or Communications Svstem means facilities for
the provision of communications services, as that term is defined herein.
5
TITLE I: GENERAL PROVISIONS
(5) Communications Services means telecommunications services, interactive
computer services, and any other services involving the transmission of information by
electronic or optical signals, except that it shall not include cable service as that term is used in
the Cable Communications Policy Act of 1984, as amended.
(6) Council means the principal governmental body of the City of Dubuque,
Iowa, its officers, or a representative person or entity as may be designated to act on its behalf,
(7) Facility or Facilities means any cable system and/or any tangible asset in
the public rights-of-way used to provide cable service.
(8) Federal Communications Commission (or FCC) means the Federal
Communications Commission or any successor.
(9) Franchise means an authorization granted by the City to a person to
construct, maintain, or emplace facilities generally upon, across, beneath, and over the public
rights-of-way in the City.
(10) Franchise Agreement means a contract entered into between the City and
a Grantee that sets forth the terms and conditions under which the franchise may be exercised.
(11)
Grantee means a person that has been granted a franchise by the City.
(12) Owner or operator of a facility means any person which has a possessory
interest in such facility or which controls or is responsible for, through any arrangement, the
management and operation of such facility.
(13) Person means any individual, corporation, partnership, association, joint
stock company, trust, governmental entity, or any other legal entity, but not the City.
(14) Public Rights-of-Wav means the surface and space above, on, and below
any public highway, avenue, street, lane, alley, boulevard, concourse, driveway, bridge, tunnel,
park, parkway, waterway, dock, bulkhead, wharf, pier, public easement, or right-of-way within
the City in which the City now or hereafter holds any property interest which, consistent with
the purposes for which it was dedicated or otherwise acquired, may be used for the purpose of
constructing, operating, and maintaining a facility.
Telecommunications has the meaning ascribed to it in 47 U.S.e. § 153(43).
(15)
(16)
Telecommunications Service has the meaning ascribed to it in 47 USe.
§ 153(46).
(17) Work permit means an authorization issued by the City to enter upon the
public rights-of-way at specified times and places to erect, construct, emplace, or otherwise
work on facilities.
6
TITLE I: GENERAL PROVISIONS
5, Authority
This ordinance is adopted pursuant to the City's powers, including but not limited to those
under Section 38A of the Iowa ConstitUtion and Section 364.2 of the Iowa Code.
6, Reservation of Rights; Police Power
No regulation shall estop or limit the City in the full exercise of its governmental powers to
protect the health and safety of the public, and all its governmental powers may be fully
exercised except as expressly provided to the contrary herein, In particular, and without
limitation, the City expressly reserves the right to amend this Ordinance from time to time in
the exercise of its governmental powers.
7. Title
This Ordinance is known and may be cited as the "Dubuque Right-of-Way Use Ordinance."
8. Authorization Required
(1) No person shall install, erect, hang, lay, bury, draw, emplace, construct,
reconstruct, maintain, or operate any facility upon, across, beneath, or over any public right-of-
way in the City or other City property without first obtaining from the City the necessary
authorization required under local, state or federal law.
(2) An owner or operator of facilities may be required to hold different
authorizations for its use of the public rights-of-way to provide different services. For example,
and without limitation, the owner or operator of facilities that provides both cable service and
telephone service must obtain both a cable franchise and any authorization needed to provide
telephony.
9. Construction Standards,
(1) Construction, operation, maintenance, and repair of facilities shall be in
accordance with all applicable law and regulation, and with sound industry practice. All safety
practices required by law shall be used during consttUction, maintenance, and repair of facilities.
(2) No Grantee or holder of any work permit for any facility shall dig, trench, or
otherwise excavate in the public rights-of-way without complying with the provisions of Iowa's
with the Iowa One-Call System, Iowa Code § 480.3 ct. scq., or its successor.
(3) An owner or operator shall at all times employ at least ordinary care and
shall install and maintain in use commonly accepted methods and devices preventing failures
and accidents that are likely to cause damage, injury, or nuisance to the public
(4) In the event of a conflict among codes and standards, the most stringent
code or standard shall apply (except insofar as those standard, if followed, would result in a
7
TITLE 1: GENERAL PROVISIONS
system that could not meet requirements of federal, state or local law, or is expressly preempted
by other such standards).
(5) A Grantee shall have the authority to trim trees that overhang public rights-
of-way of the city so as to prevent the branches of such trees from coming in contact with the
facilities of the Grantee or registrant. Notwithstanding that grant of authority, if the Grantee or
registrant performs the work, it shall be fully liable for any damages caused thereby, and shall be
responsible for replacing damaged trees and shrubs. Grantee or registrant shall be responsible for
notifying abutting property owners prior to trimming trees and shall obtain permission from the
City Manager or the City Manager's designee. At the option of the City, such trimming may be
done by it.
(6) Construction Schedule. Every owner or operator shall, at least 30 days
prior to commencing significant construction activity (including a significant rebuild, upgrade,
or repair to existing facilities) upon, across, beneath, or over any public right-of-way in the City
or other City property, specify in writing the date on which the owner or operator anticipates it
will begin construction and the approximate length of time required for such construction.
(7) Coordination of Construction With the City. Prior to the erection,
construction, upgrade, or rebuild of any facilities in the public right-of-way, the owner or
operator of such facilities shall first submit to the City for approval a concise description of the
facilities proposed to be erected or installed, including engineering drawings, if required by the
City, together with maps and plans indicating the proposed location of all such facilities. The
owner or operator shall provide the best information it has in such reasonable format as may be
specified by the City for the City's planning function No such erection or construction shall be
commenced by any Person until approval therefor has been received from the City.
(8) Coordination of Construction With Third Parties. Developers or other
parties planning the construction or opening of streets in the City shall provide reasonable
notice to the owners or operators of facilities subject to this Ordinance so that joint trenching
and joint emplacement of facilities may be conducted wherever practicable. Such owners and
operators shall similarly provide notice to each other and to any relevant developers, for the
same purpose. The City shall maintain a list of owners and operators of facilities subject to this
Ordinance for reference by other parties.
(9) Contractors and Subcontractors. Any contractor or subcontractor used
for work or construction, installation, operation, maintenance, or repair of facilities in the public
rights-of-way must be properly licensed under laws of the State and all applicable local
ordinances. Each contractor or subcontractor shall have the same obligations with respect to its
work as an owner or operator of the facility would have if the work were performed by the
owner operator. An owner or operator shall be responsible for all activities carried out by its
contractors, subcontractors and employees at the owner or operator's request.
(lO) Publicizing Proposed Construction Work The owner or operator of
facilities in the public rights-of-way shall notify the public prior to commencing any
construction that will significantly distUrb or disrupt public property or have the potential to
8
TITLE I: GENERAL PROVISIONS
present a danger or affect the safety of the public generally, Written notice of such construction
work shall be delivered to the City at least one week prior to commencement of that work.
Notice shall be provided to those persons most likely to be affected by the work in at least two
of the following ways: by telephone, in person, by mail, by distribution of flyers to residences,
by publication in local newspapers, or in any other manner reasonably calculated to provide
adequate notice. If an owner or operator must enter a building or other structure, it must
schedule an appointment at the reasonable convenience of the owner or resident.
10. Placement of Facilities.
(1) All facilities shall be installed and located to minimize interference with
the rights and convenience of other property owners.
(2) An owner or operator of a facility shall not place facilities, equipment, or
fixtures where they will interfere with any other facilities, or obstruct or hinder in any manner
the various utilities serving the residents of the City or their use of any public rights-of-way.
(3) The City may reasonably direct the specific placement of facilities to
ensure that users of the public rights-of-way do not interfere with each other and that the public
rights-of-way are used safely and efficiently.
(4) Every Grantee that ceases operating or maintaining any facility shall,
upon written request of the City within two years or the cessation or maintenance of such
facility, promptly remove it. Should the Grantee neglect, refuse, or fail to remove such facility,
the City may remove the facility at the expense of the Grantee. The obligation to remove shall
survive the termination of the franchise or license for a period of two years and shall be bonded.
(5) No owner or operator of a facility shall erect new aerial plant in or on a
public right-of-way in which one or more public service providers (electricity, telephone, cable
television) has placed its lines underground, or in an area which the City has by ordinance
forbidden new aerial plant to be constructed or existing aerial plant to be maintained.
(6) If at any time the City determines that existing wires, cables or other likc
facilities of public utilities anywhere in the City shall be changed from an overhead to
underground installation, the owner or operator of a facility shall at the owner or operator's sole
expense convert its system in that location to an underground installation.
(7) A Grantee shall use, with the owner's permission, existing poles, conduits
and other facilities whenever feasible. A Grantee may not erect poles, conduits, or other
facilities in public rights-of-way without the express permission of the City. Copies of
agreements for use of conduits or other facilities shall be filed with the City upon City request.
(8) To the extent practicable, above-ground equipment placed on private
property shall be placed at the location requested by the property owner. An owner or operator
shall provide affected homeowners with at least ten days' advance written notice of its plans to
9
TITLE I: GENERAL PROVISIONS
install such equipment, and shall make reasonable efforts to confer with such homeowners
before any work is done.
(9) Whenever above-ground equipment is placed on private property, the
operator shall either provide landscaping camouflage acceptable to the property owner, at the
operator's expense, or shall provide a cash allowance to the property owner for such landscaping
in the amount of $200 in 2000 dollars, adjusted annually for inflation based on the Consumer
Price Index. An operator may provide such allowance either in the form of a credit against
customer billings, if the property owner is a customer, or in the form of a cash payment.
ll, Relocation of Facilities.
(1) The owner or operator of a facility on or within the public rights-of-way
shall, at its own expense, upon written notice from the City reasonably in advance, promptly
relocate any facility located on or within the public rights-of-way as the City may deem
necessary or appropriate to facilitate the realignment, reconstruction, improvement or repair of
public streets, sidewalks, curbs, drains, sewers, and public improvements of any sort; provided,
however, that a operator may be permitted to abandon any property in place with the written
consent of the City.
(2) If any removal, relaying, or relocation is required to accommodate the
construction, operation, or repair of the facilities of another person that is authorized to use the
public rights-of-way, an owner or operator of a facility shall, upon thirty (30) days' advance
written notice, take action to effect the necessary changes requested by the responsible entity.
The City may resolve disputes as to responsibility for costs associated with the removal,
relaying, or relocation of facilities as among entities authorized to install facilities in the public
rights-of-way if the parties are unable to do so themselves, and if the matter is not governed by a
valid contract between the parties or a state or federal law or regulation.
(3) In the event of an emergency, or where a facility creates or is contributing
to an imminent danger to health, safety, or property, the City may remove, relay, or relocate any
or all parts of that communications system without prior notice.
12. Restoration.
(1) If an owner or operator of a facility disturbs a pavement, sidewalk,
driveway or other surfacing, or landscaping, either on private property or in public rights,of,
way, the owner or operator shall, in a manner approved by the City, replace and restore all
pavement, sidewalk, driveway or other surfacing, or landscaping disturbed, in substantially the
same condition and in a good, workmanlike, timely manner, in accordance with any standards
for such work set by the City. Such restoration shall be undertaken within no more than ten
(10) days after the damage is incurred, and shall be completed as soon as reasonably possible
thereafter. The owner or operator shall guarantee and maintain such restoration for at least one
year against defective materials or workmanship.
10
TITLE 1: GENERAL PROVISIONS
(2) In the event of an owner or operator of a facility to complete any work
required for the protection or restoration of the public rights-of-way, or any other work required
by City law or ordinance, within the time specified by and to the reasonable satisfaction of the
City, the City, following notice and an opportunity to cure, may cause such work to be done,
and the an owner or operator of a facility shall reimburse the City the cost thereof within thirty
(30) days after receipt of an itemized list of such costs; or the City may recover such costs
through the security fund provided by an owner or operator of a facility.
(3) Any and all public rights-of-way, public property, or private property that
is disturbed or damaged during the construction, repair, replacement, relocation, operation,
maintenance, or reconstruction of a system shall be promptly repaired by the an owner or
operator of a facility.
B. Work Permits
(1) No person shall install, erect, hang, lay, bury, draw, emplace, construct, or
reconstruct any facility upon, across, beneath, or over any public right-of-way in the City, or
enter into the public rights-of-way to work on a facility, without first obtaining a work permit
therefor from the City Manager or the City Manager's designee pursuant to City of Dubuque
Code of Ordinances § 41-61.
(2) An authorization under this Ordinance shall not render unnecessary or
take the place of such work permits.
14. Business License
A franchise under this Ordinance does not render unnecessary or take the place of any generally
applicable business license that may be required by the City for the privilege of transacting and
carrying on a business within the City generally.
15. Reimbursement of Costs
All Grantees will reimburse the City for its internal and out-of-pocket costs, including but not
limited to attorneys' and consultants' fees, actUally and reasonably incurred by the City in
connection with application for a franchise under this Ordinance, as determined by the City
after it takes action on the application. Any application fee submitted with the application will
be credited against this amount. The Applicant will remit to the City payment for such costs
within thirty days of its receipt of the City's invoice.
16. Administration
The City Manager or his or her designee shall-
(1) collect any applicable fees from all owners or operators of facilities using
public rights-of-way in the City;
11
TITLE 1: GENERAL PROVISIONS
(2)
audit any franchise fees or payments owed to the City;
(3) publish from time to time a schedule of application and hearing fees,
which shall be designed to recover the City's costs in processing applications hereunder and
may provide specially for hearing fees in those cases where hearings are required;
(4) be responsible for the continuing enforcement of all terms and conditions
of franchises under this Ordinance.
17. Audits
Each owner and operator of facilities in the public rights-of-way shall maintain books, records,
and plant accounts sufficient to document its obligations for any fee or payment owed pursuant
to the City Code. Such books, records, and accounts shall be maintained and available for
inspection for a period of four years; provided, however, that such books, records, and accounts
shall be maintained and available during the continuation of any audit by or on behalf of the City
commenced during such four-year period or during any dispute or litigation with respect
thereto.
18. Reports and Records.
(I)
Open Books and Records:
(A) The City shall have the right to inspect and copy at any time
during normal business hours at the nearest office of an owner or
operator of facilities, or at such other location as the City may
reasonably designate, all books, receipts, maps, records, codes,
programs, and disks or other storage media and other like material
which the City reasonably deems appropriate in order to monitor
compliance with the terms of this Ordinance or applicable law.
This includes not only the books and records of the operator, but
any books and records held by an Affiliate, or any contractor,
subcontractor or any person holding any form of management
contract for the facilities in the public rights-of-way to the extent
such books or records relate to the facilities. An owner or operator
is responsible for collecting the information and producing it at a
location as specified above.
(B)
Access to an owner or operator's records shall not be denied on the
basis that said records contain "proprietary" information. Any
confidential information received by the City shall remain
confidential insofar as permitted by the Iowa Opens Records Act, Iowa
Code Chapter 22, and other applicable state and federal law.
(2)
Annual Report:
12
TITLE 1: GENERAL PROVISIONS
Unless this requirement is waived in whole or in part in writing by the
City, no later than 90 days after the end of its fiscal year, each owner or
operator of facilities in the Public Rights-of-Way shall submit a written
report to the City, in a form directed by the City, which shall include:
(A)
(B)
(3)
An organizational chart showing all corporations or partnerships
with more than a five (5) percent ownership interest in the owner
or operator, and the nature of that ownership interest (limited
partner, general partner, preferred shareholder, etc.); and showing
the same information for each corporation or partnership that
holds such an interest in the corporations or partnerships so
identified, and so on until the ultimate corporate and partnership
interests are identified.
Detailed, updated maps depicting the location of all facilities in
the City.
Special Reports
Unless this requirement is waived in whole or in part by the City, the
owner or operator of facilities in the public rights-of-way shall deliver the
following special reports to the City
(A)
(B)
An owner or operator shall submit monthly construction reports
to the City for any major construction undertaken in the public
rights-of-way until such construction is complete. The owner or
operator must submit updated as-built system design maps to the
City, or make them available for inspection with notice of their
availability, within 30 days of the completion of system
construction in any geographic area. These maps shall be
developed on the basis of post-construction inspection by the
owner or operator and construction personnel. Any departures
from design must be indicated on the as-built maps,
An owner or operator must submit a copy and brief explanation of
any request for protection under bankruptcy laws, or any
judgment related to a declaration of bankruptcy by the owner or
operator or by any partnership or corporation that owns or
controls the owner or operator directly or indirectly.
(4) Records Required. An owner or operator of facilities in the public rights-
of-way shall at all times maintain:
(A)
A full and complete set of plans, records, and "as built" maps
showing the exact location of all equipment installed or in use in
the City, exclusive of customer service drops.
13
TITLE I: GENERAL PROVISIONS
(B)
A file showing its plan and timetable for future major construction
of the facilities.
(5)
Voluminous Materials:
If any books, records, maps or plans, or other requested documents are too
voluminous, or for security reasons cannot be copied and moved, then an
owner or operator of facilities in the public rights-of-way may request
that the inspection take place at some other location, provided that (I) the
owner or operator must make necessary arrangements for copying
documents selected by the City after review: and (2) the owner or
operator must pay all travel and additional copying expenses incurred by
the City in inspecting those documents or having those documents
inspected by its designee, as charges incidental to the enforcing of the
owner or operator's franchise or other authorization for use of the public
rights-of-way.
19, Bond or Letter of Credit
No person shall install, erect, hang, lay, bury, draw, emplace, construct, reconstruct, maintain, or
operate any facility upon, across, beneath, or over any public right-of-way in the City or other
City property until the owner or operator shall have filed with the City Manager a bond and/or
letter of credit, in a form acceptable to the City, running in favor of the City, to guarantee the
obligations of the owner or operator under this Ordinance and applicable law. The amount of
the bond or letter of credit shall be no less than the reasonable cost of removal of the facilities
and restoration of any affected public rights-of-way or other property pursuant to this
Ordinance.
20. Insurance
An owner or operator shall maintain insurance covering its facilities and
operations in the public rights-of-way, as specified in a specific title herein or in
its franchise agreement.
21. Enforcement
(1) Penalties. For violation of provisions of this Ordinance or its
authorization under this Ordinance, including but not limited to the following, penalties shall
be assessable against an owner or operator and shall be chargeable to its performance bond
and/or letter of credit in any amount up to the limits specified in City of Dubuque Code of
Ordinances Chapter 2, at the City's discretion:
(A)
For failure to supply information, reports, or filings lawfully
required under applicable law or agreements;
14
TITLE 1: GENERAL PROVISIONS
(B)
(C)
(D)
For failure to render payments due under this Ordinance, any
applicable agreement or applicable law;
For failure to file, obtain or maintain any required performance
bond or letter of credit in a timely fashion;
For failure to restore damaged property.
(2) In addition to any other remedies hereunder, the City may seek an
injunction to mitigate or terminate a violation, or employ any other remedy available at law or
equity, including but not limited to imposition of penalties pursuant to Section 21(1).
(3) Any failure of the City to insist on timely performance or compliance by
any person shall not constitute a waiver of the City's right to later insist on timely performance
or compliance by that person or any other person.
(4)
Termination on account of certain assignments or appointments
(A)
To the extent not prohibited by the United States Bankruptcy
Code, an authorization under this Ordinance shall terminate
automatically by force of law one hundred twenty calendar days
after an assignment for the benefit of creditors or the appointment
of a receiver or trustee (including a debtor-in-possession in a
reorganization) to take over the business of the owner or operator,
whether in bankruptcy or under a state law proceeding; provided,
however, that such authorization shall not so terminate if, within
that one-hundred-twenty-day period:
(i)
(ii)
(iii)
Such assignment, receivership or trusteeship has been
vacated; or
Such assignee, receiver, or trustee has cured any defaults
and has fully complied with the terms and conditions of
this Ordinance and any applicable agreement and has
executed an agreement, approved by any court having
jurisdiction, under which it assumes and agrees to be
bound by the terms and conditions of this Ordinance and
any applicable agreement.
In the event of foreclosure or other judicial sale of any of
the facilities, equipment, or property of an owner or
operator of facilities in the public rights-of-way, its
authorization under this Ordinance shall automatically
terminate thirty (30) calendar days after such foreclosure
or sale, unless:
15
TITLE 1: GENERAL PROVISIONS
(a) The City has approved a transfer to the successful
bidder; and
(iv)
(b) The successful bidder has covenanted and agreed
with the City to assume and be bound by the terms and
conditions binding its predecessor.
Any mortgage, pledge or lease of facilities in the public
rights-of-way shall be subject and subordinate to the rights
of the City under this Ordinance, any applicable
agreement, and other applicable law.
(B)
If a franchise under this Ordinance is terminated for any reason,
the City may, at its discretion, require the Grantee to remove its
facilities from the public rights-of-way and to restore the public
rights-of-way to their prior condition at the owner or operator's
expense, or that of their sureties. 1£ an owner or operator whose
authorization has been terminated fails, after reasonable notice
from the City, to remove its facilities from the public rights-of-
way, such facilities shall be deemed abandoned and ownership
forfeited to the City.
(5) All remedies specified in this Ordinance are cumulative unless otherwise
expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the
exercise of a remedy or the payment of liquidated damages or penalties relieve an operator of its
obligations to comply with this Ordinance.
(6) The owner or operator shall pay any penalty assessed in accordance with
this Section 21 within fourteen (14) days after receipt of notice from the City of such penalty.
(7)
The City may reduce or waive any of the above-listed penalties for good
cause shown.
22. Indemnification
(1) An owner or operator of facilities in the public rights-of-way shall, at its
sole cost and expense, indemnify, hold harmless, and defend the City, its officials, boards,
commissions, commissioners, agents, and employees, against any and all claims, suits, causes of
action, proceedings, and judgments for damages or equitable relief arising out of the
construction, maintenance, or operation of its facilities in the public rights-of-way, or the
conduct of the owner or operator's business in the City, or in any way arising out of the owner
or operator's activities in the City's public rights-of-way, regardless of whether the act or
omission complained of is authorized, allowed, or prohibited by this Ordinance.
16
TITLE II: CABLE COMMUNICATIONS
(2) The indemnity provided under Section 22(1) includes, but is not limited
to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit, or
proceeding. Recovery by the City of any amounts under insurance, the performance bond or
letter of credit, or otherwise shall not limit in any way a person's duty to indemnify the City, nor
shall such recovery relieve a person of its obligations pursuant to an authorization under this
Ordinance, limit the amounts owed to the City, or in any respect prevent the City from
exercising any other right or remedy it may have.
23. Severability. If any term, condition, or provision of this Ordinance shall, to any
extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective. In the event of a subsequent change in applicable law so
that the provision which had been held invalid is no longer invalid, said provision shall
thereupon return to full force and effect without further action by the City and shall thereafter
be binding on owners and operators.
TITLE II: CABLE COMMUNICATIONS
1.
General Provisions
(1) Title. This Title II shall be known and may be cited as the "City Cable
Communications Regulatory Code,"
(2) Further Findings and Purpose. The City of Dubuque, Iowa ("City") finds
that the further development of cable communications may result in great benefits for the people
of the City. Cable technology is rapidly changing, and cable plays an essential role as part of the
City's basic infrastructure. Cable television systems permanently occupy and extensively make
use of scarce and valuable public rights-of-way, in a manner different from the way in which the
general public uses them, and in a manner reserved primarily for those who provide essential
services to the public subject to special public interest obligations, such as utility companies. A
cable company typically operates a monopoly in its service area, or faces very limited
competition; thus, the grant of a franchise has the effect of giving the holder extensive economic
benefits and placing the holder in a position of public ttUst. The City finds that public
convenience, safety, and general welfare can best be served by establishing regulatory powers
vested in the City or such persons as the City so designates to protect the public and to ensure
that any franchise granted is operated in the public interest.
Further, it is recognized that cable systems have the capacity to provide not only
entertainment and information services to the City's residents, but can provide a variety of
broadband, interactive communications services to institutions and individuals. Many of these
services involve City agencies and other public institutions.
(3) In light of the foregoing, the following goals, among others, underlie the
provisions set forth in this Title:
17
TITLE II: CABLE COMMUNICATIONS
(A)
(B)
(C)
(D)
(E)
Cable should be available to as many City residents and businesses
as possible.
A cable system should be capable of accommodating both present
and reasonably foreseeable future cable-related needs of the City
A cable system should be constructed and maintained during a
franchise term so that changes in technology may be integrated to
the maximum extent possible into existing system facilities
A cable system should be responsive to the needs and interests of
the local community, and shall provide the widest possible
diversity of information sources and service to the public.
A cable operator should pay fair compensation to the City for the
occupation and use of scarce and valuable local public rights-of-
way,
(4) The City intends that all provisions set forth in this Ordinance be
construed to serve the public interest and the foregoing public purposes, and that any franchise
issued pursuant to this Ordinance be construed to include the foregoing findings and public
purposes as integral parts thereof.
(5) Delegation of Powers. The City may delegate the performance of any act,
duty, or obligation, or the exercise of any power, under this Ordinance or any franchise
agreement to any employee, officer, department or agency of the City, except where prohibited
by applicable law.
(6)
Definitions.
(A)
(B)
(C)
Access Channel. Any channel on a cable system set aside by a
Grantee for public, educational, or governmental use.
Basic Service. That Cable Service tier which includes all signals of
domestic television broadcast stations provided to any subscriber
(except a signal secondarily transmitted by satellite carrier beyond
the local service area of such station, regardless of how such signal
is ultimately received by the Cable System); any public,
educational, and governmental programming required by the
franchise to be carried on the basic tier; and any additional video
programming signals added to the basic tier by the cable operator
Cable Act. The Cable Communications Policy Act of 1984,
47 U.S.C §§ 521 et seq., as amended from time to time.
18
TITLE II: CABLE COMMUNICATIONS
(D)
(E)
(F)
Cable Operator. Any person or group of persons (A) who provides
cable service over a cable system and directly or through one or
more affiliates owns a significant interest in a substantial portion
of such cable system, or (B) who otherwise controls or is
responsible for, through any arrangement, the management and
operation of such a cable system.
Cable Service. (a) The one-way transmission to subscribers of
video programming or other programming service; and (b)
subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
Cable Svstem or System. A facility consisting of a set of closed
transmission paths and associated signal generation, reception,
and control equipment that is designed to provide cable television
service which includes video programming and which is provided
to multiple subscribers within the City, but such term does not
include (1) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (2) a facility
that serves subscribers without using any public rights-of-way
and without connecting to a facility that uses any public rights-of-
way; (3) a facility of a common carrier which is subject, in whole
or in part, to the provisions of Title II of the Communications Act,
except that such facility shall be considered a cable system if such
facility is used in the transmission of video programming directly
to subscribers; (4) an open video system that complies with 47
USe. § 573; or (5) any facilities of any electric utility used solely
for operating its electric utility system.
(G)
Converter. An electronic device which may serve as an interface
between a system and a subscriber's television receiver or other
terminal equipment, and which may perform a variety of
functions, including signal security, descrambling, electronic
polling, frequency conversion and channel selection.
(H)
Educational Access Channel or Educational Channel. Any channel
on a cable system set aside by a Grantee for educational use.
(I)
Franchise Area. The area of the City that a Grantee is authorized
to serve by its franchise agreement.
Q)
Governmental Access Channel or Governmental Channel. Any
channel on a cable system set aside by a Grantee for government
use.
19
TITLE II: CABLE COMMUNICA nONS
(K)
(L)
(M)
(N)
(0)
(P)
(Q)
(R)
(S)
Installation. The connection of system services to subscribers'
television receivers or other subscriber-owned or -provided
terminal equipment.
Normal Business Hours. Those hours during which most similar
businesses in the community are open to serve customers,
including some evening hours at least one night per week and/or
some weekend hours,
Normal Operating Conditions. Those service conditions that are
within the control of a Grantee, Conditions that are not within
the control of a Grantee include, but are not limited to, natural
disasters, civil disturbances, power outages, and telephone
network outages. Conditions that are within the control of a
Grantee include, but are not limited to, special promotions, pay-
per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of a cable system.
Programmer. Any person or entity that produces or otherwise
provides program material or information for transmission by
video, audio, digital or other signals, either live or from recorded
traces or other storage media, to users or subscribers by means of a
cable system.
Public Access Channel. Any channel on a cable system set aside
by a Grantee for use by the general public, including groups and
individuals, and which is available for such use on a non-
discriminatory basis.
School. Any primary or secondary school or college accredited by
the State of Iowa, including without limitation all accredited post-
secondary institutions such as community colleges, technical
colleges and universities.
Security Fund. A performance bond, letter of credit, or cash
deposit, or any or all of these, to the extent applicable to a given
Grantee.
Service Interruption. Loss of picture or sound on one or more
channels, or degradation of picture or sound beyond permissible
levels as defined by applicable law.
Subscriber. The City or any Person who is lawfully receiving, for
any purpose or reason, any Cable Service via a Cable System,
whether or not a fee is paid for such service.
20
TITLE II: CABLE COMMUNICATIONS
(T)
Transfer.
"Transfer" shall mean any transaction in which (A) any ownership or
other right, title, or interest of more than five percent (5%) in a Grantee or
its cable system is transferred, sold, assigned, leased, sublet, or mortgaged,
directly or indirectly, in whole or in part: or (B) there is any change in
control of the Grantee; or (C) the rights and/or obligations held by the
Grantee under the franchise are transferred, directly or indirectly, to
another party; or (D) any change or substitution occurs in the managing
general partners of the Grantee, where applicable.
Notwithstanding any other provision of this Title, pledges in trust or
mortgages of the assets of a Cable System to secure the Construction,
operation, or repair of the system may be made without application and
without City's prior consent, However, no such arrangement shall be
made if it would in any respect under any condition: (l) prevent the Cable
System Operator or any successor from complying with, this Title,
franchise agreement or other applicable law or regulation: or (2) permit a
third party to succeed to the interest of the Operator, or to own or control
the system, without the prior consent of City. Any mortgage, pledge or
lease shall be subject to and subordinate to the rights of City under any
Franchise, this Title, or other applicable law.
(i)
(ii)
(iii)
"Control" for purposes of this Section 1(6)(T) means the
legal or practical ability to exert actual working control
over the affairs of an entity, either directly or indirectly,
whether by contractual agreement, majority ownership
interest, any lesser ownership interest, or in any other
manner.
A rebuttable presumption that a transfer of control has
occurred shall arise upon the acquisition or accumulation of
five percent (5%) or more of the ownership of a entity by
any person or group of persons acting in concert, none of
whom already own or control fifty percent (50%) or morc
of such right or control, singularly or collectively.
A Grantee is responsible for ensuring that the intent of
Section 13 herein is carried out. If for any reason an event
occurs that would require the City's approval under Section
13, whether or not such event is directly or indirectly
within the Grantee's control, such event shall constitute a
"transfer" for purposes of this Ordinance and any
applicable law.
21
TITLE II: CABLE COMMUNICATIONS
(U)
2, Grant of Franchise
(1)
Grant.
(A)
(B)
(C)
User. A person or organization using a channel or equipment and
facilities for purposes of producing or transmitting material, as
contrasted with the receipt thereof in the capacity of a subscriber.
The City may grant one or more cable franchises, and each such
franchise shall be awarded in accordance with and subject to the
provisions of this Ordinance.
This Ordinance may be amended from time to time, and in no
event shall this Ordinance be considered a contract between the
City and a Grantee such that the City would be prohibited from
amending any provision hereof.
No person may construct or operate a cable system in the City
withoUt a franchise granted by the City No person may be
granted a franchise withoUt having entered into a franchise
agreement with the City pursuant to this Ordinance.
(2) Term of Franchise. No franchise shall be granted for a period of more than
fifteen (15) years, except that a Grantee may apply for renewal or extension pursuant to
applicable law.
(3)
Franchise Characteristics.
(A)
(B)
(C)
A franchise authorizes use of public rights-of-way for installing
cables, wires, lines, optical fiber, underground conduit, and other
devices necessary and appurtenant to the operation of a cable
system to provide cable service within a franchise area, but does
not expressly or implicitly aUthorize a Grantee to provide service
to, or install a cable system on, private property without owner
consent (except for use of compatible easements pursuant to
Section 621 of the Cable Act, 47 use § 541(a)(2», or to use
publicly or privately owned conduits withoUt a separate
agreement with the owners.
A franchise shall constitute both a right and an obligation to
provide the cable services regulated by the provisions of this
Ordinance and the franchise agreement.
A franchise is non-exclusive and will not explicitly or implicitly
preclude the issuance of other franchises to operate cable systems
22
TITLE 11: CABLE COMMUNICATIONS
(D)
(E)
within the City; affect the City's right to authorize use of public
rights-of-way by other persons to operate cable systems or for
other purposes as it determines appropriate; or affect the City's
right to itself construct, operate, or maintain a cable system, with
or without a franchise.
All privileges prescribed by a franchise shall be subordinate to
(without limitation) the City's use and any prior lawful occupancy
of the public rights-of-way.
No reference herein, or in any franchise agreement, to "public
rights-of. way" shall be deemed to be a representation or guarantec
by the City that its interest or other right to control the use of
such property is sufficient to permit its use for such purposes, and
a Grantee shall be deemed to gain only those rights to use as are
properly in the City and as the City may have the undisputed right
and power to give.
(4)
Grantee Subject to Other Laws, Police Power.
(A)
(B)
(C)
(D)
A Grantee shall at all times be subject to and shall comply with all
applicable federal, state, and local laws. A Grantee shall at all
times be subject to all lawful exercise of the police power and any
other lawful authority of the City, including without limitation all
rights the City may have under 47 use. § 552. Nothing in a
franchise agreement shall be deemed to waive the requirements of
the various codes and ordinances of the City regarding permits,
zoning, fees to be paid, or manner of construction, installation,
operation, maintenance, or repair of system equipment.
No course of dealing between a Grantee and the City, or any delay
on the part of the City in exercising any rights hereunder, or any
acquiescence by the City in the actions of a Grantee that are in
contravention of such rights (except to the extent such rights are
expressly waived by the City) shall operate as a waiver of any such
rights of the City.
The City shall have the maximum authority to regulate cable
systems, Grantees, and franchises as may now or hereafter be
lawfully permissible; except where rights are expressly waived by
a franchise agreement, they are reserved, whether expressly
enumerated or not.
The City may, from time to time, issue such reasonable rules and
regulations concerning cable systems as are consistent with
applicable law.
23
TITLE II: CABLE COMMUNICATIONS
(5) Eminent Domain. Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, the City's rights of eminent domain to the extent to which
they may apply to any cable system.
(6)
Applications For Initial Grant or Modification Of Franchise.
(A)
Application Required.
(i)
(ii)
(iii)
A written application shall be filed with the City for grant
of an initial franchise or modification of a franchise
agreement pursuant to 47 use. § 545.
To be acceptable for filing, a signed original of the
application shall be submitted together with twelve (12)
copies. The application must be accompanied by any
required application filing fee, conform to any applicable
request for proposals, and contain all required information.
All applications shall include the names and addresses of
persons authorized to act on behalf of all applicants with
respect to the application.
All applications accepted for filing shall be made available
by the City for public inspection.
(B)
Application for Grant of an Initial Franchise.
(i)
(ii)
A person may apply for an initial franchise by submitting
an application containing the information required in
Section 2(6)(C). Upon receipt of such an application, the
City may either (a) evaluate the application pursuant to
Section 2(6)(B)(iii), conducting such investigations as it
deems necessary: or (b) issue a Request for Proposals
("RFP"), after conducting, if necessary, a proceeding to
identify the future cable-related needs and interests of the
community Any such RFP shall be mailed to the person
requesting its issuance and made available to any other
interested party. The RFP may contain a proposed
franchise agreement.
An applicant shall respond to a RFP by filing an
application within the time directed by the City, providing
the information and material set forth in Section 2(6)(C).
The procedures, instructions, and requirements set forth in
the RFP shall be followed by each applicant Any
applicant that has already filed materials pursuant to
24
TITLE II: CABLE COMMUNICATIONS
subsection 2(6)(B)(i) herein need not refile the same
materials with its RFP response, but must amplify its
application to include any additional or different materials
required by the RFP. The City or its designee may seek
additional information from any applicant and establish
deadlines for the submission of such information.
(iii)
In evaluating an application for a franchise, the City shall
consider, among other things, the following factors:
(a) The extent to which the applicant has substantially
complied with the applicable law and the material terms of
any existing cable franchise for the City;
(b) Whether the quality of the applicant's service under
any existing franchise in the City, including signal quality,
response to customer complaints, billing practices, and the
like, has been reasonable in light of the needs and interests
of the communities served:
(c) Whether the applicant has the financial, technical, and
legal qualifications to provide cable service;
(d) Whether the application satisfies any minimum
requirements established by the City and is otherwise
reasonable to meet the future cable-related needs and
interests of the community, taking into account the cost of
meeting such needs and interests;
(e) Whether, to the extent not considered under
subsection 2(6)(B)(iii)(d), the applicant will provide
adequate Public, Educational, and Governmental access
channel capacity, facilities, or financial support;
(f) Whether issuance of a franchise is warranted in the
public interest considering the immediate and future effect
on the public rights-of-way and private property that
would be used by the cable system, including the extent to
which installation or maintenance as planned would
require replacement of property or involve disruption of
property, public services, or use of the public rights-of-
way: the effect of granting a franchise on the ability of cable
to meet the cable-related needs and interests of the
community;
25
TITLE II: CABLE COMMUNICATIONS
(iv)
(g) What effects a grant of the application may have on
competition in the delivery of cable service in the City.
If the City finds that it is in the public interest to issue a
franchise considering the factors set forth above, and
subject to the applicant's entry into an appropriate
franchise agreement, it shall issue a franchise. If the City
denies a franchise, it will issue a written decision
explaining why the franchise was denied. Prior to deciding
whether or not to issue a franchise, the City may hold one
or more public hearings or implement other procedures
under which comments from the public on an application
may be received. The City also may grant or deny a request
for a franchise based on its review of an application
without further proceedings and may reject any
application that is incomplete or fails to respond to an
RFP. This Ordinance is not intended and shall not be
interpreted to grant any applicant or existing Grantee
standing to challenge the denial of its application or the
issuance of a franchise to another.
Contents of Application. An RFP for the grant of an initial
franchise shall require, and any such application shall contain, at a
minimum, the following information:
(C)
(i)
(ii)
(iii)
Name and address of the applicant and identification of the
ownership and control of the applicant, including: the
names and addresses of the ten (10) largest holders of an
ownership interest in the applicant and affiliates of the
applicant, and all persons with five (5) percent or more
ownership interest in the applicant and its affiliates: the
persons who control the applicant and its affiliates; all
officers and directors of the applicant and its affiliates; and
any other business affiliation and cable system ownership
interest of each named person.
A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system,
including identification of key personnel.
A demonstration of the applicant's legal qualifications to
construct and/or operate the proposed cable system,
including but not limited to a demonstration that the
applicant meets the following criteria:
26
TITLE II: CABLE COMMUNICATIONS
(iv)
(v)
(vi)
(vii)
(a) The applicant must have the necessary authority
under Iowa law to operate a cable system.
(b) The applicant must have the necessary authority
under federal law to hold the franchise and operate a cable
system. An applicant must have, or show that it is
qualified to obtain, any necessary federal franchises or
waivers required to operate the system proposed.
A demonstration of the applicant's financial ability to
complete the construction and operation of the cable
system proposed.
A description of the applicant's prior experience in cable
system ownership, construction, and operation, and
identification of communities in which the applicant or
any of its principals have, or have had, a cable franchise or
any interest therein.
Identification of the area of the City to be served by the
proposed cable system, including a description of the
proposed franchise area's boundaries.
A detailed description of the physical facilities proposed,
including channel capacity, technical design, performance
characteristics, headend, and access facilities.
(viii) Where applicable, a description of the construction of the
proposed system, including an estimate of plant mileage
and its location; the proposed construction schedule; a
description, where appropriate, of how services will bc
converted from existing facilities to new facilities; and
information on the availability of space in conduits
including, where appropriate, an estimate of the cost of any
necessary rearrangement of existing facilities.
(ix)
A demonstration of how the applicant will reasonably meet
the future cable-related needs and interests of the
community, including descriptions of how the applicant
will meet the needs described in any recent community
needs assessment conducted by or for the City, and how
the applicant will provide adequate Public, Educational,
and Governmental access channel capacity, facilities, or
financial support to meet the community's needs and
interests.
27
TITLE II: CABLE COMMUNICATIONS
(x)
(xi)
(xii)
Pro forma financial projections for the proposed franchise
term, including a statement of projected income, and a
schedule of planned capital expenditures, with all
significant assumptions explained in notes or supporting
schedules.
If the applicant proposes to provide cable service to an area
already served by an existing cable Grantee, the
identification of the area where the overbuild would occur
and the ability of the public rights-of-way and other
property that would be used by the applicant to
accommodate an additional system.
Any other information that may be reasonably necessary to
demonstrate compliance with the requirements of this
Ordinance.
(xiii) Any additional information that the City may have
requested of an applicant that is relevant to the City's
consideration of the application.
(xiv) An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information
in the application, acknowledging the enforceability of
application commitments, and certifying that the
application meets all federal and state law requirements.
The City may, at its discretion and upon request of an applicant,
waive in writing the provision of any of the information required
by Section 2(6)(C).
(D)
If the applicant was formed less than two years before the date of
application, this same information shall be supplied for each party
owning an interest of ten percent or more in the applicant
(E)
(7) Application for Grant of a Renewal Franchise
(8). The renewal of any franchise to provide cable service shall be conducted in a
manner consistent with applicable federal law.
(9) Application for Modification of a Franchise. An application for modification
of a franchise agreement shall include, at minimum, the following information:
(A)
The specific modification requested;
28
TITLE II: CABLE COMMUNICATIONS
(B)
(C)
(D)
(E)
The justification for the requested modification, including the
impact of the requested modification on subscribers and others,
and the financial impact on the applicant if the modification is
approved or disapproved, demonstrated through, inter alia,
submission of financial pro formas;
A statement whether the modification is sought pursuant to
Section 625 of the Cable Act, 47 USe. § 545, and, if so, a
demonstration that the requested modification meets the
standards set forth in 47 USe. § 545;
Any other information that the applicant believes is necessary for
the City to make an informed determination on the application for
modification: and
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in thc
application, and certifying that the application is consistent with
all federal and state law requirements.
(10) Public Hearing. Prior to the issuance of a franchise, the City shall provide
for the holding of a public hearing within the proposed franchise area, following reasonable
notice to the public, at which the applicant and its application shall be examined and the public
and all interested parties afforded a reasonable opportunity to be heard.
(ll) Acceptance of Franchise. Following approval by the City, and unless
otherwise specified in a franchise agreement, any franchise granted pursuant to this Ordinance,
and the rights, privileges and authority granted by a franchise agreement, shall take effect and be
in force from and after the first date on which both the Grantee and the City have accepted and
signed the franchise agreement.
3, Construction Standards
(1) The construction, operation, maintenance, and repair of a cable system
shall be in accordance with all applicable sections of the Occupational Safety and Health Act of
1970, as amended: the most current edition of the National Electrical Safety Code and National
Electric Code; Obstruction Marking and Lighting, AC 70/7460 i.e., Federal Aviation
Administration: Construction, Marking and Lighting of Antenna SttUcrures, Federal
Communications Commission Rules Part 17; the Bellcore Blue Book Manual of Construction
Procedures; Applicant's Construction Procedures Manual; and other applicable federal, state, or
local laws and regulations that may apply to the operation, consttUction, maintenance, or rcpair
of a cable system, including, without limitation, local zoning and construction codes and laws
and accepted industry practices, all as hereafter may be amended or adopted. In the event of a
conflict among codes and standards, the most stringent code or standard shall apply (except
insofar as those standard, if followed, would result in a system that could not meet requirements
29
TITLE 11: CABLE COMMUNICATIONS
of federal, state or local law, or is expressly preempted by other such standards). The City may
adopt additional standards as required to ensure that work continues to be performed in an
orderly and workmanlike manner.
(2) Without limiting the foregoing, antennae and their supporting structures
(towers) shall be designed in accordance with the Uniform Building Code as amended, and shall
be painted, lighted, erected, and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other applicable state or local laws,
codes, and regulations, all as hereafter may be amended or adopted.
(3) The City does not guarantee the accuracy of any maps showing the
horizontal or vertical location of existing substructures. In public rights-of-way, where
necessary, the location shall be verified by excavation.
(4) To the extent practicable, above-ground equipment placed on private
property shall be placed at the location requested by the property owner. A Grantee shall
provide affected homeowners with at least ten days' advance written notice of its plans to instal]
such equipment, and shall make reasonable efforts to confer with such homeowners before any
work is done. Whenever above-ground equipment is placed on private property, the Grantee
shall either provide landscaping camouflage acceptable to the property owner, at the Grantee's
expense, or shall provide a cash allowance to the property owner for such landscaping in the
amount of $200 in 2005 dollars, adjusted annually for inflation based on the Consumer Price
Index. The Grantee may provide such allowance either in the form of a credit against subscriber
billings, if the property owner is a subscriber, or in the form of a cash payment.
4. Use of Public Property
(1) Should the grades or lines of the public rights-of-way that a Grantee is
authorized by a franchise to use and occupy be changed at any time during the term of a
franchise, the Grantee shall, if necessary, relocate or change its system so as to conform with the
new grades or lines.
(2) Any alteration to the water mains, sewerage or drainage system or to any
City, state or other public structures in the public rights-of-way required on account of the
presence of a Grantee's system in the public rights-of-way shall be made at the sole cost and
expense of the Grantee. During any work of constructing, operating or maintaining of a system,
the Grantee shall also protect any and all existing structures belonging to the City and any other
person. All work performed by the Grantee shall be done in the manner prescribed by the City
or other officials having jurisdiction therein.
30
TITLE II: CABLE COMMUNICATIONS
5. Interference with Public Projects. Nothing in this Ordinance or any franchise
agreement shall be in preference or hindrance to the right of the City and any board, authority,
commission or public service corporation to perform or carry on any public works or public
improvements of any description, and should a Grantee's system in any way interfere with the
construction, maintenance or repair of such public works or public improvements, the Grantee
shall protect or relocate its system, or part thereof, as reasonably directed by any City official,
board, authority, commission or public service corporation,
6. Consumer Protection
(1) General Provisions. This Section sets forth minimum customer service
standards that a Grantee must satisfy. In addition, the Grantee shall at all times satisfy any
additional or stricter requirements established by FCC regulations, or other applicable federal,
state, or local law or regulation, as the same may be adopted or amended from time to time.
(A)
Nothing in this Ordinance may be construed to prevent or
prohibit:
(i)
(ii)
(iii)
(iv)
(v)
the City and a Grantee from agreeing to customer service
requirements that exceed the standards set forth in this
ordinance:
the City from enforcing, through the end of a franchise
term, pre-existing customer service requirements that
exceed the standards set forth in this Ordinance and are
contained in current franchise agreements:
the City from enacting or enforcing any customer service or
consumer protection laws or regulations; or
the establishment or enforcement of any City law or
regulation concerning customer service that imposes
customer service requirements that exceed, or address
matters not addressed by, the standards set forth in this
Ordinance, a franchise agreement or federal or state law;
the City from waiving, for good cause, requirements
established in this Section 6.
(2) Nothing in this Ordinance in any way relieves a Grantee of its obligation
to comply with other applicable consumer protection laws and its franchise agreement.
(3)
Installations, Connections, and Other Grantee Services.
(A)
Standard Installations. Except as federal rate regulations may
otherwise require, the Grantee shall not assess a subscriber any
31
TITLE II: CABLE COMMUNICATIONS
(B)
(C)
(D)
(E)
cost other than a standard installation charge for service drops, for
a single outlet, unless the Grantee demonstrates to the City's
satisfaction that extraordinary circumstances justify a higher
charge.
The subscriber's preference as to the point of entry into the
residence shall be observed whenever feasible. Runs in building
interiors shall be as unobtrusive as possible. The Grantee shall use
due care in the process of installation and shall repair any damage
to the subscriber's property caused by said installation. Such
restoration shall be undertaken as soon as possible after the
damage is incurred and shall be completed within no more than
thirty (30) days after the damage is incurred.
Location of Drops. In locations where the Grantee's system must
be underground, drops must be placed underground as well.
Except as federal law may otherwise require, in any area where a
Grantee would be entitled to install a drop above-ground, the
Grantee will provide the homeowner the option to have the drop
installed underground if requested, but may charge the
homeowner the difference between the actual cost of the above,
ground installation and the actual cost of the underground
installation.
Time for Extension. Where a Grantee is required under this
Section 6(3)(A) to provide service to a person, it must providc
such service (i) within 30 days of the person's request if such
person resides no further than one hundred fifty (ISO) feet from
the Grantee's distribution system; (ii) within sixty days if the
person resides more than one hundred fifty (150) feet from the
Grantee's distribution system, but the distribution system need
not be extended for one-half mile or more to provide service; and
(iii) within six months if an extension of the distribution system
for one-half mile or more is required.
Deposits. A Grantee may require a reasonable, non-discriminatory
deposit on equipment provided to subscribers, in addition to any
allowable monthly rental fees. Any subscriber deposit required by
Grantee shall bear interest in accordance with applicable law or at
the going rate, which shall be not less than the prime rate of the
bank being used by the City for the conduct of ordinary business.
All deposits, with interest, shall be returned to the subscriber
within thirty (30) days after termination of service or return of the
equipment, whichever is sooner.
32
TITLE II: CABLE COMMUNICATIONS
(4)
(5)
(F)
Antennas. A Grantee shall not, as a condition to providing cable
service, require any subscriber or potential subscriber to remove
any existing reception devices for the receipt of over-the-air
signals.
Telephone and Office Availability.
(A)
(B)
(C)
(D)
Each Grantee shall maintain an office at a convenient location in
the City that shall be open during normal business hours to allow
subscribers to request service, pay bills, and conduct other
business.
Each Grantee will maintain at least one local, toll-free or collect
call telephone access line which will be available to subscribers 24
hours a day, seven days a week. Trained representatives of a
Grantee shall be available to respond to subscriber telephone
inquiries during normal business hours.
Under Normal Operating Conditions, the following standards
shall be met by a Grantee at least ninety (90) percent of the time,
measured quarterly.
(i)
Telephone answering time shall not exceed thirty (30)
seconds, and the time to transfer the call to a customer
service representative (including hold time) shall not
exceed an additional thirty (30) seconds.
(ii)
A customer will receive a busy signal less than three
percent (3%) of the time.
(iii)
When the business office is closed, an answering machine
or service capable of receiving and recording service
complaints and inquiries shall be employed. Inquiries
received after hours must be responded to by a trained
representative of a Grantee on the next business day. To
the extent possible, the after-hours answering service shall
comply with the same telephone answer time standard set
forth in this Section.
A Grantee must hire sufficient staff so that it can adequately
respond to customer inquiries, complaints, and requests for
service in its office, over the phone, and at the subscriber's
residence.
Scheduling and Completing Service
33
TITLE II: CABLE COMMUNICATIONS
(A)
(B)
Installations, Outages and Service Calls. Under Normal Operating
Conditions, each of the following standards shall be met by all
Grantees at least 95% of the time, as measured on a quarterly
basis:
(i)
Repairs and maintenance for service interruptions and
other repairs not requiring work within a subscriber's
premises must be completed within twenty-four (24)
hours after the subscriber reports the problem to the
Grantee or its representative or the interruption or need for
repairs otherwise becomes known to the Grantee. Work
on all other requests for service must be begun by the next
business day after notification of the problem All such
work must be completed within three (3) days from the
date of the initial request, except installation requests. In
any case where, for reasons beyond a Grantee's control, the
work could not be completed in the specified time periods
even with the exercise of all due diligence, the Grantee
shall complete the work in the shortest time possible; the
failure of a Grantee to hire sufficient staff or to properly
train its staff shall not justify a Grantee's failure to comply
with this provision. Except as federal law requires, no
charge shall be made to the subscriber for this service,
except for the cost of repairs to the Grantee's equipment or
facilities where it can be documented that the equipment
or facility was damaged by a subscriber System outages
affecting more than 500 subscribers shall be acted upon
with four hours after the Grantee becomes aware of the
outage, including Saturdays, Sundays, and legal holidays
(ii)
The appointment window for installations, service calls,
and other installation activities will be either a specific
time or, at maximum, a 4-hour time block during normal
business hours.
(iii)
A Grantee may not cancel an appointment with a
subscriber after the close of business on the business day
preceding the appointment. If a Grantee's representative is
running late for an appointment with a subscriber and will
not be able to keep the appointment as scheduled, the
subscriber will be contacted, and the appointment
rescheduled, as necessary, at a time which is convenient for
the subscriber
Each Grantee shall perform service calls, installations, and
disconnects at least during normal business hours. In addition,
34
TITLE II: CABLE COMMUNICATIONS
(C)
(D)
(E)
(F)
(G)
maintenance service capability enabling the prompt location and
correction of major system malfunctions shall be available twenty-
four hours a day, seven days a week.
Emergency Maintenance. A Grantee shall keep an emergency
system maintenance and repair staff, capable of responding to and
repairing system malfunctions or interruptions, on a twenty' four
(24) hour basis.
Other Inquiries. Under Normal Operating Conditions, billing
inquiries and requests for service, repair, and maintenance not
involving service interruptions must be acknowledged by a trained
customer service representative within twenty-four (24) hours, or
prior to the end of the next business day, whichever is earlier A
Grantee shall respond to all other inquiries within five (5)
business days of the inquiry or complaint.
Repair of Facilities. Except as federal law requires, no charge shall
be made to the subscriber for repairs or maintenance of Grantee-
owned equipment or facilities, except for the cost of repairs to the
Grantee's equipment or facilities where it can be shown that the
equipment or facility was damaged by a subscriber.
Missed Appointments. If a subscriber experiences a missed
appointment due to the fault of a Grantee, the Grantee shall pay
the subscriber twenty (20) dollars for each missed appointment,
or such other amount as the City and the Grantee may agree, in
addition to any other penalties or liquidated damages.
Mobility-Limited Subscribers. With regard to mobility-limired
subscribers, upon subscriber request, each Grantee shall arrange
for pickup and/or replacement of converters or other Grantee
equipment at the subscriber's address or by a satisfactory
equivalent (such as the provision of a postage-prepaid mailer).
(6) Interruptions of Service. A Grantee may intentionally interrupt service on
the cable system only for good cause and for the shortest time possible and, except in emergency
situations or to the extent necessary to fix the affected subscriber's service problems, only after a
minimum of forty-eight (48) hours prior notice to subscribers and the City- of the anticipated
service interruption; provided, however, that planned maintenance that does not require more
than two (2) hours' interruption of service and that occurs between the hours of 12:00 midnight
and 6:00 a,m. shall not require such notice to subscribers, but shall require notice to the City no
less than twenty-four (24) hours prior to the anticipated service interruption.
(7)
Notice to Subscribers.
35
TITLE II: CABLE COMMUNICATIONS
(A)
(B)
When a subscriber is connected or reconnected to a cable system
and at least once annually afterwards, and at any time upon
request, the Grantee shall provide each subscriber with written
information concerning the following. Copies of all such materials
provided to subscribers shall also be provided to the City. Such
information shall also be made available on a generally accessible
Internet site.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
a description of products and services offered, including a
schedule of rates and charges, a list of channel positions,
and a description of programming services, options, and
conditions:
a description of the Grantee's installation and service
maintenance policies, delinquent subscriber disconnect
and reconnect procedures, and any other of its policies
applicable to its subscribers;
instructions on how to use the cable service;
instructions for placing a service call;
a description of the Grantee's billing and complaint
procedures, including the address and telephone number of
the City office responsible for receiving subscriber
complaints;
a copy of the service contract, if any;
notice regarding subscribers' privacy rights pursuant to 47
USe. § 551;
notice of the availability of universal remote controls and
other compatible equipment (a list of which, specifying
brands and models, shall be provided to any subscriber
upon request).
The Grantee shall provide to all subscribers at least thirty days'
written notice before the implementation of any change in rates,
programming services, business hours, legal holidays, or
procedures for responding to inquiries after normal business
hours. At least five working days before the subscriber notice,
unless waived by the County, the Grantee shall provide to the
County the specific points to be contained in a subscriber notice
and the text of the subscriber notice, if available. If the text is
36
TITLE II: CABLE COMMUNICATIONS
(C)
(D)
(8)
Billing.
(A)
(B)
(C)
(D)
not available, it shall be provided to the County as soon as it is
available.
All Grantee promotional materials, announcements, and
advertising of residential cable service to subscribers and the
general public, where price information is listed in any manner,
shall clearly and accurately disclose price terms. In the case of
pay'per-view or pay-per-event programming, all promotional
materials must clearly and accurately disclose price terms and in
the case of telephone orders, a Grantee shall take appropriate
steps to ensure that price terms are clearly and accurately
disclosed to potential customers before the order is accepted
Each Grantee shall maintain a public file containing all notices
provided to subscribers under these customer service standards, as
well as all promotional offers made to subscribers. Copies of all
such notices, promotional or special offers sent to subscribers, and
of any agreements used with subscribers, shall be filed promptly
with the City.
Bills shall be clear, concise, and understandable. Bills must be fully
itemized with itemizations including, bur not limited to, basic and
premium service charges and equipment charges. Bills shall clearly
delineate all activity during the billing period, including optional
charges, rebates, and credits.
Refund checks to subscribers shall be issued promptly, but no
later than the later of -
(i)
the subscriber's next billing cycle, or thirty (30) days,
following resolution of the refund request, whichever is
earlier; or
(ii)
the return of all equipment supplied by the Grantee, if
service is terminated.
Credits for service shall be issued no later than the subscriber's
next billing cycle following the determination that a credit is
warranted.
A Grantee's first billing statement after a new installation or
service change shall be prorated as appropriate and shall reflect
any security deposit.
37
TITLE 11: CABLE COMMUNICATIONS
(E)
(F)
(G)
(H)
(1)
(J)
A Grantee's billing statement must show a specific payment due
date not earlier than the midpoint of the period for which the
service being billed is rendered (e.g., the fifteenth day of a thirty-
day billing cycle). Any balance not received by seven (7) days after
the end of the period for which the service being billed is rendered
may be assessed a late fee not exceeding 1.5% of the bill, or such
other amount as the City and the Grantee may agree, consistent
with state and local law. Any late fee shall appear on the following
month's billing statement.
A Grantee must notify the subscriber that he or she can remit
payment in person at the Grantee's business office and inform the
subscriber of the address of that office.
Subscribers shall not be charged a late fee or otherwise penalized
for any failure by a Grantee, including failure to timely or correctly
bill the subscriber, or failure to properly credit the subscriber for a
payment timely made.
The account of any subscriber shall be credited a prorated share of
the monthly charge for the service upon the subscriber's
reasonably prompt request and, without a subscriber's request, in
any case where the Grantee can identify the affected subscribers, if
said subscriber is without service or if service is substantially
impaired for any reason for a period exceeding four (4) hours
during any twenty-four (24) hour period, except where it can be
documented that a subscriber seeks a refund for an outage or
impairment which that subscriber caused, or in the case of a
planned outage occurring between the hours of 12:00 midnight
and 6:00 a.m. of which the subscriber had prior notice.
The account of any subscriber shall be credited a share, prorated
by time, of that subscriber's monthly charge for all services if any
service purchased by that subscriber is deliberately intertUpted by
the Grantee for any reason for a period exceeding fifteen (15)
minutes other than by reason of an emergency (for example, if a
Grantee substitutes other programming on a channel for the
programming normally carried on that channel and purchased by
the subscriber), provided that this subsection shall not prevent
the Grantee from making permanent changes in its channel lineup
or programming to the extent otherwise permitted by applicable
law.
A Grantee shall respond to all written billing complaints from
subscribers within thirty (30) days.
38
TITLE II: CABLE COMMUNICATIONS
(9)
Dis conn ec tio n/D owngra des.
(A)
(B)
(C)
(D)
(E)
A subscriber may terminate service at any time.
A Grantee shall promptly disconnect or downgrade any
subscriber. No period of notice prior to voluntary termination or
downgrade of service may be required of subscribers by any
Grantee. So long as the subscriber returns, or permits the Grantee
to retrieve, any equipment necessary to receive a service within
five (5) business days of the disconnection, no charge may be
imposed by any Grantee for any cable service delivered after the
date of the disconnect request.
Any security deposit and/or other funds due the subscriber shall
be refunded on disconnected accounts after any customer
premises equipment provided by the Grantee has been recovered
by the Grantee. The refund must be made within thirty (30) days
or by the end of the next billing cycle, whichever is earlier, from
the date disconnection was requested (or, if later, the date on
which any customer premises equipment provided by the Grantee
is returned).
If a subscriber fails to pay a monthly subscriber fee or other fee or
charge, a Grantee may disconnect the subscriber's service:
however, such disconnection shall not be effected until after forty'
five (45) days from the beginning of the period for which the
service being billed is rendered, plus at least ten (10) days' advance
written notice to the subscriber in question of intent to
disconnect, given after the 45 days have elapsed. If the subscriber
pays all amounts due, including late charges, before the date
scheduled for disconnection, the Grantee shall not disconnect
service. After disconnection, upon payment by the subscriber in
full of all proper fees or charges, including the payment of the
reconnection charge, if any, the Grantee shall promptly reinstatc
service.
A Grantee may immediately disconnect a subscriber if the
subscriber is damaging or destroying the Grantee's cable system or
equipment. After disconnection, the Grantee shall restore service
after the subscriber provides adequate assurance that it has ceascd
the practices that led to disconnection, and pays all proper fees
and charges, including any reconnect fees and amounts owed the
Grantee for damage to its cable system or equipment.
39
TITLE II: CABLE COMMUNICATIONS
(F)
(G)
(H)
A Grantee may also disconnect a subscriber that causes signal
leakage in excess of federal limits. Disconnection may be effected
after five (5) days' written notice to the subscriber, if the
subscriber fails to take steps to correct the problem. In addition, a
Grantee may disconnect a subscriber without notice where signal
leakage is detected originating from the subscriber's premises in
excess of federal limits, provided that the Grantee shall
immediately notify the subscriber of the problem and, once the
problem is corrected, reconnect the subscriber.
If a Grantee fails to remove its property from a subscriber's
premises within thirty (30) days of the termination of service, the
property shall be deemed abandoned, unless such subscriber is
responsible for the Grantee's failure to remove such property.
A Grantee shall reconnect service to customers wishing
restoration of service, provided such a customer shall first satisfy
any previous obligations owed.
(10) Parental Control Option. A Grantee shall make available to any
subscribers upon request the option of blocking the video or audio portion of any channel or
channels of programming entering the subscriber's home. The control option described herein
shall be made available to all subscribers requesting it when any cable service is provided, or
reasonably soon thereafter.
(ll)
Subscriber Contracts
. No Grantee shall require a subscriber, as a condition of service, to waive any rights the
subscriber may have against the Grantee at law or equity.
(12)
Enforcement
(A)
(B)
A Grantee shall keep such records as are necessary to show
compliance with these customer service standards and FCC
customer service standards.
A Grantee shall file annually with the City a statement signed by
an officer or employee certifying compliance with these customer
service standards and FCC customer service standards for each
calendar quarter. Each such certification shall be filed with the
Grantee's annual report. If a Grantee is unable to certify full
compliance for each calendar quarter, it must indicate in its filing
each standard with which it is in compliance, and in non-
compliance statement.
40
TITLE II: CABLE COMMUNICATIONS
(C)
(D)
(E)
(F)
(G)
If a Grantee in non-compliance with any standard during any
calendar quarter, it shall include in its annual filing a statcmeDt
specifying areas of non-compliance, the reason for the non.
compliance and a remedial plan.
An officer or employee of a Grantee who knowingly and
intentionally signs a false compliance certificate or noncompliance
statement shall be guilty of a misdemeanor.
A Grantee that fails to file a compliance certificate or
noncompliance statement as required herein shall be liable for the
penalty specified for violation of customer service standards
herein.
In addition, except as prohibited by federal law, a Grantee shall be
subject to penalties, forfeitures and any other remedies or
sanctions available under federal, state or local law, including
without limitation this Ordinance and a Grantee's franchise with
the City, if it fails to comply with the standards herein.
Violation of the consumer protection obligations referred to in this
Section 6 shall be a municipal infraction as defined in Section I-IS
of the City of Dubuque Code of Ordinances and shall be
punishable as provided therein.
(13)
Exclusive Contracts and Anticompetitive Acts Prohibited.
(A)
(B)
7. Rate Regulation
No Grantee shall enter into an exclusive contract for the provision
of cable service with any person (including, but not limited to, a
building owner), or demand the exclusive right to serve a person
or location as a condition of extending service.
No Grantee shall engage in acts that have the purpose or effect of
limiting competition for the provision of cable service or services
similar to cable service in the City, except for such actions as arc
expressly authorized by federal or state law
The City reserves the right to regulate all rates and charges except to the extent it is
prohibited from doing so by law.
8. Franchise Fee
(1)
Payment of Franchise Fee.
41
TITLE II: CABLE COMMUNICATIONS
(A)
(B)
(C)
Each Grantee shall pay a franchise fee in an amount determined in
the franchise agreement.
In the event that any franchise fee payment or any recomputation
amount is not paid by the due date, then interest shall acctUe to
the City from such due date at a rate equal to the interest rate then
chargeable for unpaid federal income taxes (26 u.S.e. § 6621). In
addition to the foregoing, the failure of a Grantee to make timely
payment shall subject the Grantee to an additional late charge of
ten percent of the amount of such payment. The City shall have
the aUthority to waive such late charge if payment is delayed
through no fault of the Grantee.
In the event that a franchise is revoked prior to its expiration date,
the Grantee shall file with the City, within thirty days after the
date of revocation, a financial statement certified by the Grantee's
chief financial officer or an independent certified public
accountant clearly showing the gross revenues received by the
Grantee since the previous franchise fee payment period and shall
pay at that time any franchise fees accrued as of the date of
revocation.
(2)
Not a Tax or in Lieu of Any Other Tax or Fee.
(A)
(B)
Payment of the franchise fee shall not be considered in the nature
of a tax, nor shall it be considered in lieu of other taxes or fees
imposed by the City except to the extent that federal law requires
such other taxes or fees to be considered part of the franchise fee.
No Grantee may designate the franchise fee as a tax in any
communication to a subscriber.
(3) No Accord or Satisfaction. No acceptance of any payment by the City
shall be construed as a release or an accord and satisfaction of any claim the City may have for
further or additional sums due or for the performance of any other obligation of a Grantee, or as
an acknowledgement that the amount paid is the correct amount due.
(4) Allocation of Discounts. For purposes of calculating franchise fee
payments under applicable Franchise provisions, any discount reflected in an aggregated bill for
services which include cable services will be allocated proportionately to cable services.
9, System Tests and Inspections
(1) A Grantee shall perform all tests necessary to demonstrate compliance
with the requirements of its franchise and other performance standards established by law or
regulation, and to ensure that system components are operating as expected.
42
TITLE II: CABLE COMMUNICATIONS
(2)
A Grantee shall conduct tests as follows:
(A)
acceptance tests on each newly constructed or rebuilt segment
prior to subscriber connection or activation:
(B)
proof of performance tests on the system at least once every six
months or as required by FCC rules. whichever is more often,
except as federal law may otherwise limit the Grantee's obligation;
(C)
special tests when subscriber or user complaints indicate tests arc
warranted;
(D)
special tests at the City's reasonable request.
(3) Tests shall be supervised by the Grantee's professional engineer, who shall
sign all records of tests provided to the City.
(4) A Grantee shall provide the City with at least two business days' notice
of, and opportunity to observe, any tests performed on the system. The City may also conduct
inspections of construction areas and subscriber installations, including but not limited to
inspections to assess compliance with the Grantee's construction and installation requirements,
its franchise agreement, and applicable law generally. Inspection does not relieve the Grantee of
its obligation to build in compliance with all provisions of its franchise.
(5) A written report of the results of any tests required by the City shall be
filed with the City within seven (7) days of each test upon the City's request. In addition, the
Grantee shall retain written reports of the results of any tests required by the FCC, and such
reports shall be submitted to the City upon the City's request.
(6) If any test requested by the City indicates that any part or component of
the system fails to meet applicable requirements, the Grantee, without requirement of additional
notice or request from City, shall take corrective action, retest the locations and advise the City
of the action taken and results achieved.
(7) The City reserves the right to conduct its own tests upon reasonable
notice to the Grantee. If noncompliance is found, the expense thereof shall be borne by the
Grantee. The City will endeavor to arrange any request for such tests so as to minimize
hardship or inconvenience to the Grantee or to subscribers.
10. Insurance
(1) 1\ Grantee shall maintain, and by its acceptance of the Franchise specifically
agrees that it will maintain, throughout the entire length of the Franchise period, insurance as set
forth in the Insurance Schedule, Exhibit 1\, as such schedule may from time to time be amended by
the City. The Insurance Schedule attached as Exibit 1\ is the City's current schedule.
43
TITLE II: CABLE COMMUNICATIONS
(A)
All contractualliability insurance policies and certificates maintained
pursuant to this Agreement shall include the provision of the
following Indemnification clause:
To the fullest extent permitted by law, the Grantee
shall indemnify and hold harmless the City from
and against all claims, damages, losses and
expenses, including but not limited to attorneys'
fees, arising out of or resulting from the Franchise,
provided that such claim, damages, loss or expense
is attributable to bodily injury, sickness, disease or
death, or injury to or destruction of property
including loss of use resulting therefrom, but only
to the extent caused in whole or in part by negligent
acts or omissions of the Grantee, the Grantee's
subcontractor, or anyone directly or indirectly
employed by the Grantee or the Grantee's
subcontractor or anyone for whose acts the Grantee
or the Grantee's subcontractor may be liable,
regardless of whether or not such claim, damage,
loss or expense is caused in part by a party
indemnified hereunder.
11. Reports and Records - Cable
(1) A Grantee shall maintain financial records that allow analysis and review of
its operations in each individual Franchise Area.
(2)
Communication with Regulatory Agencies
(A) The Grantee shall file with the City all reports and materials
submitted to or received from the following agencies by the Grantee
or its Affiliates that relate specifically to the Cable System or could
affect the Grantee's operations in the City: the FCC, the Securities
and Exchange Commission, and any other federal or state regulatory
commission or agency having jurisdiction over any matter affecting
operation of the Grantee's System. Such reports and materials shall
include, but are not limited to, proof of performance tests and
results, Equal Employment Opportunity reports, and any petitions or
applications regarding the Cable System or a group of Cable Systems
of which the Grantee's Cable System is a part.
(B)
Materials filed with the City pursuant to Section 11 (2) (A) shall be
filed as follows: Materials submitted by the Grantee, an Affiliate, or
any other Person on the behalf of the Grantee shall be filed with the
44
TITLE II: CABLE COMMUNICATIONS
(C)
City at the time they are submitted to the receiving agency. Materials
received by the Grantee shall be flied with the City within thirty (30)
days of the date they are received by the Grantee, except that if
applicable law permits a response to such materials by the City and
sets a deadline of sixty (60) or fewer days for the City's response, they
shall be flied with the City within five (5) days of the date they are
received by the Grantee.
Public access to such materials received by the City shall not be
denied, except to the extent expressly required by law.
(3) Annual Report: Unless this requirement is waived in whole or in part by the
City, no later than 90 days after the end of its fiscal year, a Grantee shall submit a written report to
the City, in a form directed by the City, which shall include:
(A)
(B)
(C)
(D)
(E)
a summary of the previous year's activities in development of the
Cable System, including but not limited to descriptions of services
begun or dropped, the number of subscribers gained or lost for each
category of service, the number of pay units sold, the amount
collected annually from Lsers of the System and the character and
extent of the services rendered to such Users, including Leased
Access Channel Users;
a summary of complaints, identifying both the number and nature of
the complaints received and an explanation of their dispositions, as
such records are kept by the Grantee. Where complaints involve
recurrent System problems, the nature of each such problem and the
corrective measures taken shall be identified;
a report showing the number of service calls received by type during
each quarter, and the percentage of service calls compared to the
Subscriber base by type of complaint;
a report showing the number of outages and service degradations for
each quarter, and identifying separately each planned outage, the time
it occurred, its duration, and the estimated area and number of
Subscribers affected; each unplanned outage or service degradation,
the time it occurred, its estimated duration and the estimated area and
the number of Subscribers affected; and the total hours of outages
and service degradations as a percentage of total hours of Cable
System operation,
a copy of any rules and regulations of the Grantee applicable to
subscribers of the cable system, and of any contracts used with
residential subscribers;
45
TITLE 11: CABLE COMMUNICATIONS
(F)
(G)
(H)
(I)
CD
an annual statement of Gross Revenues derived from the operation
of the Cable System, certified by the Grantee's chief financial officer
or an independent certified public accountant;
a summary of the results of, and/or, at the Grantee's option, copies
of the System's technical tests and measurements performed during
the past year;
a full schedule of all Subscriber and other user rates, fees and charges;
the Grantee's policies regarding Subscriber privacy;
such other information as the City may direct.
(4) A Grantee must submit a copy and full explanation of any notice of
deficiency, forfeiture, or other document issued by any state or federal agency instituting any
investigation or civil or criminal proceeding regarding the Cable System, the Grantee, or any Affiliate
of the Grantee, to the extent the same may affect or bear on operations in the City. By way of
illustration and not limitation, a notice that an Affiliate that has a management contract for the Cable
System was not in compliance with FCC EEO requirements would be deemed to affect or bear on
operations in the City. This material shall be submitted in accordance with the deadlines specified in
Section 11 (2) (B) herein.
(5) Additional Reports: Each Grantee shall prepare and furnish to the City, at the
times and in the form prescribed by the City, such additional reports with respect to its operation,
affairs, transactions or property, as the City may reasonably deem necessary or relevant to the
performance of any of the rights, functions or duties of the City in connection with this Agreement
and/ or the Cable Ordinance.
(6) Records Required: The Grantee shall maintain:
(A)
(B)
(C)
Records of all complaints received. The term "complaints" as used
herein and throughout this Agreement refers to complaints about any
aspect of the Cable System or the Grantee's operations, including,
without limitation, complaints about employee courtesy. Complaints
recorded may not be limited to complaints requiring an employee
service call.
Records of outages, indicating date, duration, area, number of
Subscribers affected, type of outage, and cause.
Records of service calls for repair and maintenance, indicating the
date and time service was required, the date of acknowledgement and
date and time service was scheduled (if it was scheduled), the date
and time service was provided, and (if different) the date and time the
problem was solved.
46
TITLE II: CABLE COMMUNICATIONS
(D)
Records of installation/ reconnection and requests for service
extension, indicating date of request, date of acknowledgment, and
the date and time service was extended.
(7) Retention of Records; Re1ation to Privacy Rights: A Grantee shall take all steps
that may be required to ensure that it is able to provide the City all information which must be
provided or may be requested under the Cable Ordinance or this Agreement, including by providing
appropriate Subscriber privacy notices. Nothing in this Section shall be read to require a Grantee to
violate 47 use. § 551. Each Grantee shall be responsible for redacting any data that federal law
prevents it from providing to the City, The City retains the right to question any such redaction and
to challenge it in any forum having jurisdiction over such a challenge. Records shall be kept for at
least five (5) years, unless otherwise agreed to in writing by the City.
(8) Waiver of Reporting Requirements: The City may, at its discretion, waive in
writing the requirement of any particular report specified in this Section 11.
12, Performance Guarantees And Penalties
(1)
Penalties
For violation of provisions of this Ordinance or a franchise
agreement entered into pursuant to this Ordinance, including but
not limited to the following, penalties shall be assessable against a
Grantee and shall be chargeable to the Grantee's security fund in
any amount up to the limits specified in City of Dubuque Code of
Ordinances § 1-15 ct seq., at the City's discretion:
(A)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
For failure to substantially complete construction in
accordance with the franchise agreement.;
For transferring the franchise withoUt approvaL
For failure to comply with requirements for public,
educational, and governmental use of the system.
For violation of customer service standards.;
For failure, unless such failure is beyond the Grantee's
control, of the system to perform in the event of a public
emergency.
For violation of technical standards established by the
FCe.
For violation of federal. state, or local privacy requirements.
47
TITLE II: CABLE COMMUNICATIONS
(B)
(C)
(D)
(E)
(F)
(viii)
For any other violations of this Ordinance, a franchise
agreement, or other applicable law.
The following procedure shall apply, in place of the amount
specified in Section 12(I)(A)(iv) above, for violation of customer
service standards, in assessing liquidated damages for customer
service standards that are measured on a quarterly basis:
(i)
(ii)
(iii)
For the first calendar quarter in which the Grantee does
not meet the prescribed standard (a "noncompliant
quarter"), the Grantee will be subject to penalties in the
amount of $2,000.
For a second consecutive noncompliant quarter, the
Grantee shall be subject to penalties in the amount of
$3,000.
For each consecutive noncompliant quarter beyond the
second, the Grantee shall be subject to penalties in the
amount of $6,000.
The Grantee shall pay any penalty assessed in accordance with
this Ordinance within thirty days after receipt of notice from the
City,
To the extent that penalties are applied to a Grantee under this
Section 12(1), a Grantee shall not be subject to liquidated damages
payable to the City for the same violation.
The City may reduce or waive any of the above, listed penalties for
good cause shown.
Pending litigation or any appeal to any regulatory body or court
having jurisdiction over a Grantee shall not excuse the Grantee
from the performance of its obligations under this Ordinance or its
franchise agreement unless a stay is obtained. Failure of the
Grantee to perform such obligations because of pending litigation
or petition, in the absence of a stay issued by a forum of competent
jurisdiction, may result in forfeiture or revocation pursuant to the
provisions of this Ordinance and/or its franchise agreement.
(2) Remedies Cumulative. All remedies under this Ordinance and the
franchise agreement are cumulative unless otherwise expressly stated. The exercise of a remedy
or the payment of liquidated damages or penalties shall not relieve a Grantee of its obligations to
comply with its franchise or applicable law
48
TITLE II: CABLE COMMUNICATIONS
(3)
Procedure For Remedying Franchise Violations.
(A)
If the City determines that a Grantee has failed to perform any
obligation under the franchise or has failed to perform in a timely
manner, the City may make a written demand on the Grantee that
it remedy the violation, If the violation is not remedied or in thc
process of being remedied to the satisfaction of the City within a
reasonable time period following the demand, the City may
(i)
assess against the Grantee monetary penalties as provided
in Section 12(1) of this Ordinance;
(ii)
request revocation of the franchise as provided in the
franchise agreement; or
(iii)
pursue any legal or equitable remedy available under the
franchise or any applicable law.
(4) Relation to Insurance and Indemnity Requirements. Recovery by the City
of any amounts under insurance, the security fund, the performance bond, or lettet of credit, or
otherwise does not limit a Grantee's duty to indemnify the City in any way; nor shall such
recovery relieve a Grantee of its obligations under a franchise, limit the amounts owed to the
City, or in any respect prevent the City from exercising any other right or remedy it may have.
13, Transfers
(1)
City Approval Required.
(A)
(B)
A franchise shall be a privilege that is in the public trust and
personal to the Grantee. A Grantee's obligations under its
franchise involve personal services whose performance involves
personal credit, trust, and confidence in the Grantee.
No transfer of a franchise, Grantee, or cable system, or of control
over the same (including, but not limited to, transfer by forced or
voluntary sale, merger, consolidation, receivership, or any other
means) shall occur unless prior application is made by the Grantec
to the City and the City's prior written consent is obtained,
pursuant to this Ordinance and the franchise agreement, and only
then upon such terms and conditions as the City deems necessary
and proper. Any such transfer without the prior written consent
of the City shall be considered to impair the City's assurance of
due performance. The granting of approval for a transfer in one
instance shall not render unnecessary approval of any subsequent
transfer.
49
TITLE II: CABLE COMMUNICATIONS
(2)
Application,
(A)
(B)
A Grantee shall promptly notify the City of any proposed transfer.
At least one hundred twenty (120) calendar days prior to the
contemplated effective date of a transfer, a Grantee shall submit to
the City a written application for approval of a transfer Such an
application shall provide complete information on the proposed
transaction, including details on the legal, financial, technical, and
other qualifications of the transferee, and on the potential impact
of the transfer on subscriber rates and service. At a minimum, the
following information must be included in the application, unless
these requirements are waived, reduced, or modified by the City:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
all information and forms required under federal law;
all information required in Sections 2(6)(C)(i)-(v) of this
Ordinance;
a detailed statement of the corporate or other business
entity organization of the proposed transferee, together
with an explanation of how decisions regarding the System
will be made if the proposed transaction is approved:
complete and unredacted copies of any contracts, financing
documents, or other documents that relate to the proposed
transaction, and all documents, schedules, exhibits, or the
like referred to therein;
any documents related to the transaction (including any
documents regarding rates the transferee expects to
charge) that have been provided to any entity that has been
asked to provide financing (debt, equity, or any other kind)
for, or to underwrite any offering made in connection with,
the proposed transaction;
any shareholder reports or filings with the Securities and
Exchange Commission ("SEC') or the Federal Trade
Commission ("FTC') that discuss the transaction, and any
filings required under federal or state law in connection
with the proposed transaction;
complete financial statements for the Grantee and any
potential transferees for the last three years, including
balance sheets, income statements, profit and loss
statements, and documents detailing capital investments
and operating costs;
a detailed description of the sources and amounts of the
funds to be used in the proposed transaction, indicating
how the debt-equity ratio of the System will change in the
course of the transaction; what entities will be liable for
50
TITLE II: CABLE COMMUNICATIONS
(C)
(D)
(E)
(ix)
repayment of any debt incurred; what interest, payment
schedule, and other terms or conditions will apply to any
debt financing; any debt coverages or financial ratios any
potential transferees will be required to maintain over the
franchise term if the proposed transaction is approved;
what financial resources would be available to the System
under the control of the proposed transferee; whether the
proposed transferee can meet debt-equity or any other
required ratios without increasing rates, with any
assumptions underlying that conclusion, and if not, what
increases would be required and why;
any other information necessary to provide a complete and
accurate understanding of the financial position of the
System before and after the proposed Transfer;
complete information regarding any potential impact of the
Transfer on subscriber rates and service;
any representations made to anyone, in connection with
the transaction, about the Grantee's compliance with its
Franchise; and
a brief summary of the proposed transferee's plans for at
least the next five years regarding line extension, plant and
equipment upgrades, channel capacity, expansion or
elimination of services, and any other changes affecting or
enhancing the performance of the System.
(x)
(xi)
(xii)
To the extent consistent with applicable law, the City may waive
in writing any such requirement that information be submitted as
part of the initial application, without thereby waiving any rights
the City may have to request such information after the initial
application is filed.
For the purposes of determining whether it shall consent to a
transfer, the City or its agents may inquire into all qualifications of
the prospective transferee and such other matters as the City may
deem necessary in considering the matters described in Section
13(3)(A). The Grantee and any prospective transferees shall assist
the City in any such inquiry, and if they fail to do so, the request
for transfer may be denied.
Any transfer review period established by federal law will not
begin until all documents and information required by Section
13(2)(B), without exception, have been provided to the City,
unless the City and the Grantee have expressly agreed in writing,
before the transfer application is filed with the City, that specified
documents or parts of documents may be redacted, excluded, or
reviewed through special arrangements. It shall be the
51
TITLE II: CABLE COMMUNICATIONS
responsibility of the Grantee in any transfer to make any
arrangements with the City with regard to redaction, exclusion, or
confidentiality, including without limitation the execution of any
confidentiality agreements that may be appropriate, prior to the
filing of any FCC Form 394 or transfer application. By accepting
its franchise, a Grantee agrees that any transfer application
inconsistent with this requirement is void and, in addition, that
filing such an application constitutes a violation of this Ordinance.
(3)
Determination by City.
(A)
(B)
(C)
In making a determination as to whether to grant, deny, or grant
subject to conditions an application for a transfer, the City may
consider, without limitation, the legal, financial, and technical
qualifications of the transferee to operate its system: any potential
impact of the transfer on subscriber rates or services; whether the
incumbent cable operator is in compliance with its franchise
agreement, this Ordinance, and applicable law, and, if not,
whether the proposed transferee will cure any noncompliance;
whether the transferee owns or controls any other cable system in
the City, and whether operation by the transferee may eliminate or
reduce competition in the delivery of cable service in the City;
whether operation by the transferee or approval of the transfer
would adversely affect subscribers or the public, or the City's
interest under the franchise agreement, this Ordinance, and other
applicable law; whether the transfer would make it less likely that
the future cable-related needs and interests of the community
would be satisfied at a reasonable cost; and any other matters that
it is required or permitted to consider under applicable law.
Any transfer without the City's prior written approva1 shall be
ineffective, and shall make this franchise subject to cancellation at
the City's sole discretion, and to any other remedies available
under the franchise agreement, this Ordinance, or other applicable
law. Any such transfer shall be deemed to cause irreparable harm
to the City.
A Grantee shall be fully liable for any transfer that is in violation of
the terms of its franchise agreement or this Ordinance and is
caused in whole or in part by any other entity or entities, including
but not limited to any parents or affiliated entities, as if such
transfer had been caused by the Grantee itself.
(4) Transferee's Agreement: No application for a transfer shall be granted
unless the transferee agrees in writing that it will abide by and accept all terms of the franchise
52
TITLE II: CABLE COMMUNICATIONS
agreement and this Ordinance, and that it will assume the obligations, liabilities, and
responsibility for all acts and omissions, known and unknown, of the previous Grantee for all
purposes, including renewal, unless the City, in its sole discretion, expressly waives this
requirement in whole or in part.
(5) Approval Does Not Constitute Waiver. Approval by the City of a transfer
does not constitute a waiver or release of any of the rights of the City under this Ordinance or a
franchise agreement, whether arising before or after the date of the transfer.
14. Rights Of Individuals Protected
(1)
Discriminatory Practices Prohibited.
(A)
(B)
(C)
(D)
A Grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, programmers, or residents of the
City on the basis of race, color, religion, national origin, sex, or age.
A Grantee shall not discriminate among persons or take any
retaliatory action against a person because of that person's
exercise of any right it may have under federal, state, or local law,
nor may the Grantee require a person to waive such rights as a
condition of taking service
A Grantee shall not deny access or levy different rates and charges
on any group of potential residential cable subscribers because of
the income of the residents of the local area in which such group
resides.
Subject to applicable law and except to the extent the City may
waive such a requirement, a Grantee is prohibited from
discriminating in its rates or charges or from granting undue
preferences to any subscriber, potential subscriber, or group of
subscribers or potential subscribers; provided, however, that a
Grantee may offer temporary, bona fide promotional discounts in
order to attract or maintain subscribers, so long as such discounts
are offered on a non-discriminatory basis to similar classes of
subscribers throughout the City; and a Grantee may offer
discounts for the elderly, the handicapped, non-for-profit persons
or organizations, or the economically disadvantaged, and such
other discounts as it is expressly entitled to provide under federal
law, if such discounts are applied in a uniform and consistent
manner A Grantee shall comply at all times with all applicable
federal, state, and City laws, and all executive and administrative
orders relating to non-discrimination.
(2)
Subscriber Privacy.
53
TITLE III: OPEN VIDEO SYSTEMS
(A)
(B)
(C)
A Grantee shall at all times protect the privacy rights of all
subscribers, including but not limited to those rights secured by
the provisions of Section 631 of the Cable Act, 47 use § 551.
A subscriber may at any time revoke any authorization to release
information by delivering to the Grantee in writing, by mail or
otherwise, the subscriber's decision to revoke the authorization.
Any such revocation shall be effective upon receipt by the Grantcc.
A Grantee shall not condition subscriber service on the
subscriber's grant or denial of permission to collect, maintain or
disclose personally identifiable information except to the extent
that such information is necessary for credit check or billing
purposes. A subscriber may at any time revoke any permission
previously given by delivering to the Grantee a written statement
of that intent.
15.
Miscellaneous Provisions
(1) No Recourse Against the City. Without limiting such immunities as the
City or other persons may have under applicable law, a Grantee shall have no recourse
whatsoever against the City or its officials, boards, commissions, agents or employees for any
loss, costs, expense or damage arising out of any provision or requirement of this Ordinance or
because of the enforcement of this Ordinance or the City's exercise of its authority pursuant to
this Ordinance, a franchise agreement, or other applicable law, unless the same shall be caused
by criminal acts or by willful or gross negligence.
TITLE III: OPEN VIDEO SYSTEMS
1. Applicabilitv of Ordinance.
(1) In addition to this Title III, Titles 1 and 11 of this Ordinance shall apply to
open video systems that comply with 47 use. § 573, to the extent permitted by applicable law,
except that the following sections of Title 11 shall not apply: § 2(1)-2(3) (regarding grant of
franchise), § 2(6) (franchise applications), § 7 (rate regulation), § 8(2) (regarding franchise fees),
§ 12(1)(A)(i) and -(ii) (certain penalties), § 21(4) (franchise termination due to certain
conditions), § 13 (transfers).
(2) In applying this Ordinance to an open video system, "Grantee" shall be
taken to refer to the open video system operator, "cable system" to the open video system,
"franchise" to any authorization granted by the City to the open video system operator, and
similar terms shall apply similarly.
54
TITLE Ill: OPEN VIDEO SYSTEMS
2. Application for Open Video System Authorization.
(1) A person proposing to use public rights-of-way to install devices for the
operation of an open video system shall first obtain authorization from the City for such use
Such a person may apply for such authorization by submitting an application containing
(A)
(B)
(C)
(D)
The name and address of the applicant and an identification of the
ownership and control of the applicant, including: the names and
addresses of the ten largest holders of an ownership interest in the
applicant and affiliates of the applicant, and all persons with
three percent or more ownership interest in the applicant and its
affiliates; the persons who control the applicant and its affiliates:
all officers and directors of the applicant and its affiliates; and any
other business affiliation and cable system ownership interest of
each named person.
A detailed description of the physical facilities the applicant
proposes to place in public ways.
Any information that may be reasonably necessary to demonstrate
compliance with the requirements of federal law and with this
Ordinance.
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the
application and certifying that the application meets all federal
and state law requirements.
(2) The City may, at its discretion and upon request of an applicant, waive in
writing the provision of any of the information required by this Section 2.
(3) Upon the City's grant of open video system authorization, the applicant
shall pay to the City $_. This payment shall be non-refundable and shall be used to offset
in whole or in part any costs incurred by the City in granting the authorization.
3. Fee In Lieu of Franchise Fee,
An open video system operator shall pay to the City a fee in lieu of and on the same basis
as the franchise fee required in Title 11, Section 8 of this Ordinance, pursuant to the procedures
and conditions specified in that Section and generally herein.
4. Public, Educational, and Governmental Access Obligations.
An open video system operator shall be subject to obligations pertaining to public,
educational, and governmental access pursuant to applicable law and to the requirements
herein.
55
TITLE III: OPEN VIDEO SYSTEMS
5. Right-of-Way Usage.
An open video system operator shall be subject to all requirements of state and local law
regarding authorization to use or occupy the public rights-of-way, except to the extent
specifically prohibited by federal law FCC approval of an open video system operator's
certification pursuant to 47 U.S.e. § 573 shall not be taken to confer upon such operator any
authority to use or occupy the public rights-of-way that such operator would not otherwise
possess.
PASSED AND ADOPTED this ~ day of
APPROVED:
ATTEST:
City Clerk
APPROVED AS TO FORM
REVIEWED BY:
City Manager
City Attorney
56
A CABLE FRANCHISE AGREEMENT
BETWEEN CI,TY OF DUBUQUE, IOWA
AND MCC IOWA, LLC
[date]
CABLE FRANCHISE AGREEMENT
CITY OF DUBUQUE. IOWA
Page
1.
DEFINITIONS,."....".,...,....".."..,.."",.......,....,....,..,..,....."..",.."........,."......,.".........."..",1
(a) Cable Ordinance ,.....,........."..,...,.........,..,.....,..".,.........."...,.,...."..,.........,...,...,.,.".. 2
(b) Franchise Agreement or Agreement......................................................................... 2
(c) Franchise Area ....,........"..,.....,...,.."....."...............",..,.....,..,.,.."....,..".,.......",.."...,.2
(d) Grantee..,..,.,..,..".."....,...",...,...,.....,...,..",.........."....,........,.,..,.....,.."........",.."..,.... 2
(e) Gross Revenues ....,...,...""...,."....",.."..".......,..",.",...,',..,'"",..,."..,......".,....,....,..,,2
(f) Institutional NetWork or NetWork:.........................................................................., 2
~ ~,.,."..,.".,',..,...."..,.."..,...,.....,.,',....,.."..,....,....,.,.".."."......."",....."."".".....,.2
(h) Plant Mile...,.".,..."...,....,..,...,.,....",...,...".."...,......,",..",....,...".,..,..,...,.",.",....,...,..,2
(i) Prior Franchise..,....,....,...,.."."...,....,.........,.."..".."..."".."."."....,..,...,......,....,.........2
2,
GRANT OF AUTHORITY; LIMITS AND RESERVATIONS......................................... 3
(a) Grant of Authority .,........,..".,...................,...,..",....,.."".".....,.....,..,.....",..,....,....,...3
(b) Area Served..,.......,....,..."..,..,.........,....,..",..",."........".............,.".............,....,..."...,3
(c) Term ,..,..,.,......,..."..."...,.",..,.....,..,....,',.,',..,.........,...."......."".."......,..".......""....3
(d) Grant Not Exclusive .."...,....."..".....,...,....,...".""",.,..,.,."..,.....,.....".........."."......,.3
(e) Compliance With Applicable Law............................................................................ 3
(f) Franchise Agreement Subject to Exercise of Police Powers...................................... 3
~ Approval and Effective Date..........:......................................................................... 4
(b) Effect of Acceptance:,.."........."...."...,..",..",.."........,.....,."..,..,.,.....",.,........".."....,4
ø Claims Related to Prior Franchise ............................................".............................. 4
G) Waivers ,..,...."..,.........,......"..,...,.....,........,.......,',..,',.....,.",.,."............,.,....."..",...... 4
(k) No Recourse ...,........".."........."...",..."..",.".,..,..."",..,....,....",.,.,......,..".......",..,....5
3.
TRANSFERS"....,..,.",..,..."..."...,.,........",............,....,...,.....,...."..".......,..,..,.......,..",.......",5
4,
PROVISION OF CABLE SERVICE..,...."....,...,...",.""..,......,.."..,..,.............."...",.""..,... 5
(a) Line Extension Requirements ................................................"................................ 5
(b) Continuity of Service.......................,....,....,........"....,....,....,.,.....,....."......,....,...",....6
5.
SYSTEM FACILITIES, EQUIPMENT AND SERVICES................................................. 6
(a) System Characteristics.....,.."..".....,..."....,.......,..."....,...........,...."........""",........"...6
(b) System Functionality ......,.."..,...,.....,....,..."..",....,......................,.....,.,.....,....,.....,..,,7
(c) Technical Standards .,....,......,..",............",....,...,.....,...."..".......,...........",..."....,...".8
(d) Interconnection..,....,...."..,.............,..."...,....,..".....,..""..,.....,............,.",.",........"...8
(e) Emergency Alert System .......................................................................................... 8
(f) Coordination of Trenching....,...,.....,.............................,...,.......,..". "......,...",.""..,..9
~ Updating..".,..,........",..........,..."....,.........,.""............""..".,........,.,......".."".",....... 9
6.
CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE .....,......,...."......,....,....,.........,.........,...,........,....,.........,..."..,..,.10
(a) Access Channels..,..,...,.......,.,........"..".....,..",...,.............,...,."..,....,.."...."..."..,.....10
(b) Capital Grant for Access Equipment and Facilities................................................. 13
(c) Public Access ,.,...,.."......,..,.....,..........",.............,..,',."..........."..,....,....,....,...".,...,. 13
(d) Return Feed From Facilities ................................................................................... 13
(e) Management of Channels,..".,."......,....,....."..."......"..".,.......,., ..........,.."..........,.,,14
(f) Editorial Control"..,...,...,.....,.,.......,...",.........,..........,....,.",.,.....",..,....."..",...,..,...14
(g) Cable Service to Certain Facilities........................................................................... 15
(h) Institutional Network.".,...,...,.........,.....,....,...."...,......,..,..".".......,.................,...,., 15
(i) Costs and Payments Not Franchise Fees ................................................................ 23
7.
FRANCHISE FEE."..,...,.."..,........."."..,...,....."...."..",........."."..,.",."....,...."........,.",.",23
(a) Payment to City."."......",....,......,..".....,.",.............".".....,......,.."".,......."."",.......23
(b) Final Payment ",.....",..,....."..,..".,....".........""",.."........."",."........,....,..........."",,24
(c) Supporting Information "....."........".........",...,.......,.."..,..".,........"...".......",.",....24
(d) Late Payments,..,..".."..,.."..,......,.",...,....",..."...,...,.."..,."".........".."........",.."."..24
(e) Audit ..,..".",.....,...,...,..,..".....,..",."....,",..,',..,......."..,..,...............,...........,..,.",...25
8,
PERFORMANCE GUARANTEES AND REMEDIES .................................................. 25
(a) Performance Bond..,...,...,.,...,..".,..........."....,...,...,...,..,..,.......,."".",.,.,.".""..,......25
(b) Letter of Credit .."."...,.."."..,..,......."...,...."".."..........,.."..,..".......,.".."........,."",.26
(c) Rights Cumulative...."."..,...,..,.......,.."",.............,..",..,.....".".."....,....,...."...,.....",26
(d) Security Fund Procedures,.".........",.,.,....",..",...........,..,."..,........"....,.........,..",.,.. 27
(e) Remedies.,...,..,......"..".."..,....."....,.",...",...."..",."........."..,...,....,..".,..."..........,... 27
(f) Liquidated Damages.".........,..".......,...............".......,.........,..",.",........",..".........,,28
(g) Shortening, Revocation, or Termination of Franchise ............................................ 29
9,
MISCELLANEOUS PROVISIONS .".......""...,.....,...",.",.........".,.."........,.,....,........,.,.,,30
(a) Binding Acceptance .....".".".,........,.............""""""""""""""'"....",..",.........",.,.30
(b) Severability,."..........,...,...,.",.,.."...,...",...,...........,.",..".,.......,..".."..........".."........ 30
(c) Grantee Bears Its Own Costs................................................................................. 31
(d) Force Majeure .."..,.......,......,...."..........,.........."..,....,...,.,..""""'".."....,....",.......",31
(e) Governing Law ...".."..,.....",.,...,.."..""""""""""""""""""""...".,....,............".,.. 31
(f) Notices.,..",.,..,.......,...,...,..,..,...,..",...,................,..".........,............,..........,...".,...... 31
(g) Time of the Essence...............................................................................................31
(h) Captions and References ........................................................................................31
(i) Understanding and Consent ..................................................................................,31
1: DEFINITIONS,
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN CITY OF DUBUQUE, IOWA
AND MCC IOWA, LLC
THIS CABLE FRANCHISE AGREEMENT (the "Franchise Agreement") is entered into
by and between City of Dubuque, Iowa ("City"), a municipal corporation and MCC Iowa, LLC, a
[insert state of formation] [corporation/limited partnership] ("Mediacom").
WHEREAS, Mediacom has asked the City to renew Mediacom's nonexclusive franchise (the
"Prior Franchise") to construct, operate, maintain, update and re<;onstruct a cable services delivery
system in the City; and
WHEREAS, the construction, installation, maintenance and operation of such a system
involves the occupation of and placement of private commercial facilities in the Public Rights-of-
Way within the City; and
WHEREAS, the City has reviewed Mediacom's performance under the Prior Franchise and
the quality of service during the Prior Franchise term, has identified the future cable-related needs
and interests of the City and its citizens, has considered the fmancial, technical and legal
qualifications of Mediacom, and has determined whether Mediacom's plans for constructing,
operating and maintaining its Cable System are adequate, in a full public proceecling affording due
process to all parties; and
WHEREAS, the City has relied on Mediacom's representations and has considered the
information that Mediacom has presented to it; and
WHEREAS, based on Mediacom's representations and information, and in response to its
request for renewal, the Council has determined that, subject to the provisions of the Cable
Ordinance, and the terms and conditions set forth herein, the grant of a new nonexclusive franchise
to Mediacom, to supersede the Prior Franchise, on the terms and conditions herein and subject to
applicable law, is consistent with the public interest;
NOW, THEREFORE, in consideration of the City's grant of a new franchise to Mediacom;
Mediacom's promise to provide Cable Service to residents of the City pursuant to and consistent
with the Cable Ordinance, its Franchise, and the terms and conditions set forth herein; and other
good and valuable consideration, the receipt and the adequacy of which is hereby acknowledged,
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
1.
DEFINITIONS.
Except as otherwise provided herein, the defmitions and word usage set forth in the Cable
Ordinance are incorporated herein and shall apply in this Agreement. In addition, the following
definitions shall apply:
1: DEFINITIONS.
(a) Cable Ordinance: [Insert reference to Ordinance], as it may be amended from time to
time.
(b) Franchise Agreement or Agreement:
appendices hereto.
This contract and any amendments, exhibits or
(c) Franchise Area: The entire present territorial limits of the City and any area annexed
thereto during the term of the Franchise.
(d) Grantee: MCC Iowa, LLC, a [insert state] [corporation/limited partnership],
(e) Gross Revenues: Any and all cash, credits, property or other consideration of any kind or
nature derived from the operation of the Grantee's Cable System by the Grantee, its Affiliates, or
any other entity that is a cable operator of the System, except where such revenues must be excluded
pursuant to federal or state law, This defmition shall be construed so as to include all gross revenues
to the maximum extent permitted by federal and state law, except to the extent specifically excluded
in Section 1 (e) (2), and encompasses revenues that may develop in the future, whether or not
anticipated.
(1) Gross Revenues include, by way of illustration and not limitation, fees for any
cable service; installation, disconnection, reconnection, and change-in-service fees; leased channel
fees; late fees and administrative fees; fees, payments, launch fees, marketing support, or other
payments or consideration received from programmers for carriage of programming on the System;
revenues from rentals or sales of Converters or other equipment; studio rental, production
equipment, and personnel fees; advertising revenues (including any commissions received by a third
party); barter; revenues from program guides; and revenues from home shopping and bank-at-home
channels.
(2) Gross Revenues shall not include any taxes on services furnished by the Grantee
which are imposed direcdy on any Subscriber or user by the state, City, or other governmental unit
and which are collected by the Grantee on behalf of said governmental unit. A Franchise fee is not
such a tax, and franchise fee expenses may not be deducted in determining the amount of the fee
due to the City,
(f) Institutional Network or Network: This term shall have the meaning given to it in Section
6(h)(1)(B) herein,
(g) PEG: Public, educational, and governmentaL
(h) Piant Miie: The length in miles of strand-bearing or underground cable as measured on
the street or easement from pole to pole or pedestal to pedestaL
(i) Prior Franchise: Cable Services Delivery Franchise, Appendix B of the Code of
Ordinances of the City of Dubuque Iowa, Ordinance No. 42-81 (passed July 29, 1981).
2: GRANT OF AUTHORITY; LIMITS AND RESERV A nONS
2.
GRANT OF AUTHORITY: LIMITS AND RESERVATIONS
(a) Grant of AuthoritY: Upon passage by the Council of an ordinance granting a franchise
to the Grantee, the Grantee will be granted a franchise subject to the terms and conditions of this
Franchise Agreement, and subject to the Cable Ordinance and all other applicable law. This
Franchise shall grant no authority for the Grantee to use the City's Public Rights-of-Way for any
purposes other than provision of Cable Service, except to the extent other services may be provided
pursuant to Section 6(h) herein. No privilege or power of eminent domain is bestowed by this grant;
nor by this Agreement. This Agreement does not confer any rights other than as expressly provided
herein. The franchise will be for the period specified in Section 2(c) below, during which time the
Grantee will receive the right and obligation to construct, reconstruct, operate and maintain a cable
television system within the public rights-of-way in the City for the sale purpose of providing cable
service, If for any reason whatsoever the Council does not pass such an ordinance, this Franchise
Agreement will be of no further force and effect.
(b)
Area SenJed The Franchise is for the Franchise Area, as that term is deemed herein.
(2) The Grantee shall build its system so that it is able to provide service to all
areas located within the City limits as they existed on the effective date of this Agreement. It must
build the system so that it can extend service to persons in the City, including residents located in
areas which may be annexed in the future, in accordance with the provisions of this Agreement,
unless this requirement is waived in writing by the City,
(c) 7èrm: The Franchise and this Franchise Agreement shall extend for a term of -
years, commencing on the date accepted below by the Grantee, unless the Franchise is earlier
revoked or its term shortened as provided herein or in the Cable Ordinance,
(d) Grant Not Exclusive: The Franchise and the right it grants to use and occupy the Public
Rights-of-Way shall not be exclusive, and the City reserves the right to grant other franchises for
similar uses or for other uses of the Public Rights-of-Way, or any portions thereof, to any Person, or
to make any such use itself, at any time, with or without a franchise,
(e) Compliance With Applicable Law: The Grantee shall comply with the Cable Ordinance
and all other applicable law. The Grantee accepts and agrees to all of the provisions of the Cable
Ordinance, and the obligations imposed upon it thereby, to the same degree and extent as if each
and every such provision were repeated herein, and irrespective of whether any such provisions be
so repeated.
(f) Franchise Agreement Subject to Exercise of Po/ice Powers: All rights and privileges granted
herein are subject to the police powers of the City and its rights under applicable laws and
regulations to exercise its governmental powers to their full extent and to regulate the Grantee and
the construction, operation and maintenance of the Grantee's Cable System, including, but not
limited to, the right to adopt and enforce additional ordinances and regulations as the City shall find
necessary in the exercise of its police powers, the right to adopt and enforce applicable zoning,
building, pennitting and safety ordinances and regulations, the right to adopt and enforce ordinances
and regulations relating to equal employment opportunities, and the right to adopt and enforce
2: GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
ordinances and regulations containing right-of-way, telecommunications, utility and cable television
consumer protection and service standards and rate regulation provisions, except to the extent that
an exercise of such powers would impair the obligations of this Agreement as prohibited by
Article 1, Section 10, clause 1 of the u.s. ConstitUtion.
(g) Approva/ and Effictive Date: This Franchise Agreement shall become effective upon its
approval by the Council.
(h) Effict of Acceptance:
By accepting the Franchise and executing this Franchise Agreement, the Grantee:
(1) accepts and agrees to comply with each provision of the Cable Ordinance and
this Agreement, and all applicable federal, state, and 10callaws and regulations;
(2) acknowledges and accepts the City's legal right to grant the Franchise, to enter
this Franchise Agreement, and to enact and enforce ordinances and regulations related to the
Franchise;
(3) agrees that the Franchise was granted pursuant to processes and procedures
consistent with applicable law, and that it will not raise any claim to the contrary, or allege in any
claim or proceeding by the Grantee against the City that any provision, condition or term of the
Franchise, the Ordinance or this Franchise Agreement at the time of the acceptance of the Franchise
was unlawful, unreasonable or arbitrary, or that at the time of the acceptance of the Franchise any
such provision, condition or term was void or that the City had no power or authority to make or
enforce any such provision, condition or term; and
(4) agrees that it will not oppose intervention by the City in any proceeding affecting
the Grantee's Cable System.
(i) Claims Related to Prior Franchise: As of the effective date of the Franchise, the Prior
Franchise shall be of no further force and effect, and as of that date, the Grantee surrenders any
rights it had thereunder. The Grantee shall remain liable for payments of all franchise fees owed
under the Prior Franchise, and the grant of the Franchise shall have no effect on the Grantee's duty
under the Prior Franchise to indemnify or insure the City against acts and omissions occurring
during the period that the Prior Franchise was in effect, The Grantee shall remain liable for all
losses or damages resulting from any failure to construct, install or maintain its cable system
properly, and shall be obligated to correct any such failures.
(j) Waivers
(1) On petition by the Grantee, the City may in its discretion waive any provision of
this Agreement, if such waiver is in the public interest.
(2) The failure of the City on one or more occasions to exercise a right or to require
compliance or performance under this Franchise Agreement, the Cable Ordinance or any other
3: TRANSFERS
applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or
perfonnance by the City, nor to excuse the Grantee from complying or performing, unless such
right or such compliance or performance has been specifically waived in writing,
(3) Waiver of a breach of this Agreement shall not be a waiver of any other breach,
whether similar to or different from that waived. Neither the granting of the Franchise, nor any
provision herein, nor any action by the City hereunder shall constitute a waiver of or a bar to the
exercise of any governmental right or power of the City, including without limitation the right of
eminent domain.
(k) No Recourse: Without limiting such immunities as the City or other Persons may
have under applicable law, a Grantee will have no monetary recourse against the City or its
officials, boards, commissions, agents or employees for any loss, costs, expense or damage
arising out of (i) the construction, operation or repair of its Cable System, including in cases
where the act or omission giving rise to the same was required under Applicable Law or directed
by the City; or (¡i) the acts or omissions of the City or any other entity using the Public Rights-
of-Way or other property under the City's control, except acts and omissions of the City that
involve intentional misconduct by the City,
3.
TRANSFERS
The Grantee shall comply with all requirements of the Ordinance and applicable law
regarding transfers.
4.
PROVISION OF CABLE SERVICE
(a) IJne Extension Requirements
(1) Existing- boundaries. Within the City's boundaries as they existed on the
effective date of this Agreement, the Grantee must extend its Cable System to provide service to any
person or business upon request, without charging such person or business more than the standard
installation charges, unless the Grantee demonstrates to the City's satisfaction that extraordinary
circumstances jnstify a waiver of this requirement.
(2) New areas. In any area annexed by the City after the effective date of this
Agreement:
(A)
From the date of annexation until three years after that date, the
Grantee shall extend its Cable System as necessary to provide service
to every school and government facility and every residential and
institutional subscriber where the average potential subscriber density
is at least thirty (30) potential subscribers per linear mile of
distribution network, or where (for residential dwelling units) the
dwelling unit is within two hundred (200) feet of any existing portion
of the Cable System,
5: SYSTEM FACILITIES, EQUIPMENT AND SERVICES
(B)
Beginning three years after the date of annexation, the Grantee shall
be subject to the same standard as applied within existing boundaries
pursuant to Section 4(a)(1),
(C)
Nothing in this Section 4(a) shall be construed to prevent the
Grantee from extending service to all units in an annexed area at an
earlier date.
(b) Continuity of Service
(1) The Grantee shall ensure that all Subscribers receive continuous uninterrupted
service. At the City's request, the Grantee shall operate its System for a temporary period (the
"Transition Period") following the termination, sale, or Transfer of its Franchise as necessary to
maintain service to Subscribers, and shall cooperate with the City to assure an orderly transition
from it to another Grantee, The Transition Period shall be no longer than the reasonable period
required to ensure that Cable Service will be available to Subscribers, and shall not be longer than
thirty-six (36) months, unless extended by the City for good cause. During the Transition Period,
the Grantee will continue to be obligated to comply with the terms and conditions of this
Agreement and applicable laws and regulations,
(2) If the Grantee abandons its System during the Franchise term, or fails to operate
its System in accordance with the terms of this Agreement during any Transition Period, the City, at
its option, may operate the System, designate another entity to operate the System temporarily until
the Grantee restores service under conditions acceptable to the City or until the Franchise is revoked
and a new Grantee selected by the City is providing service, or obtain an injunction requiring the
Grantee to conrinue operations, If the City is required to operate or designate another entity to
operate the Cable System, the Grantee shall reimburse the City or its designee for all reasonable
costs and damages incurred that are in excess of the revenues from the Cable System.
(3) The Grantee shall be deemed to have abandoned its system if the Grantee fails
to provide Cable Service in accordance with its Franchise over any portion of the Franchise Area for
ninety-six (96) consecutive hours, unless the City authorizes a longer interruption of service or the
failure is due to force majeure as characterized herein, or the Grantee, for any period, willfully and
without cause refuses to provide Cable Service in accordance with its Franchise over a substantial
portion of the Franchise Area.
5.
SYSTEM FACILITIES. EQUIPMENT AND SERVICES
(a) System Characteristics: The Grantee's Cable System shall, at all times during the Franchise
term, meet or exceed the following requirements:
(1) Industry-accepted Equipment. The System shall use equipment generally used in
high-quality, reliable, modern systems of similar design, including but not limited to backup power
supplies capable of providing power to the system for not less than three hours according to
manufacturer's reasonable specifications, in view of local conditions, in the event of an electrical
5: SYSTEM FACILITIES, EQUIPMENT AND SERVICES
outage. The obhgation to provide such backup power supplies shall apply to the Grantee's headend,
each fiber optic node, and any other 10cation(s) within the System necessary to maintain service to
Subscribers who have power for not less than three hours in the event of an electrical outage
affecting the System. In addition, the System's electronics shall be capable of passing through the
signals received at the headend without substantial alteration or deterioration (thus, for example, the
System shall include components so that a signal received at the headend in color may be received
by a Subscriber in color and a stereo signal in stereo). The Grantee shall comply with all applicable
laws and regulations concerning System compatibility with Subscribers' television receivers and/or
videocassette recorders. The City may require Grantee to add equipment and facilities to its System
as necessary to comply with this paragraph, and may establish reasonable deadlines for completion
of that work,
(2) The Grantee shall comply with all FCC regulations regarding scrambling or
other encryption of signals,
(3) No Deterioration to Access Signals. The System shall be so constructed and
operated that there is no significant deterioration in the quality of PEG access siguals or leased
access signals, either upstream or downstream, as compared with any other channel on the System.
Deterioration refers to any signal problem, including but not limited to ghost images and other
interference and distortions.
(4) Consumer Equipment For Lease or Sale. Subject to applicable law or regulation,
as part of the System, the Grantee shall offer every Subscriber the opportunity to use equipment that
allow Subscribers to view a program on one channel while recording a program on another channel.
(5) Parental Control. The Grantee shall ensure that means are available to enable
Subscribers to block out audio and video on any undesired channels on the System,
(6) Program Security, The System shall include equipment so that any pay-per-view
programming can only be activated by the positive action of a subscriber using, for example, a
private identification number or other individual selection procedure.
(7) Service to Persons with Disabilities, All closed-caption programming
retransmitted by the System shall include the closed-caption signal. For hearing impaired
Subscribers, the Grantee shall provide information concerning the cost and availability of equipment
to facilitate the reception of all basic services for the hearing impaired. In addition, the Grantee
must have TDD/TIY (or equivalent) equipment at the company office, and a publicly listed
telephone number for such equipment, that will allow hearing impaired customers to contact the
company,
(b) System Functionality
(1) The Cable System shall have functional capabilities at least as good as those
of a system with the following characteristics:
5: SYSTEM FACILITIES, EQUIPMENT AND SERVICES
(A)
bandwidth of at least 750 MHz on all active components and at
least 1 GHzJor all passive components;
(B)
no more than 500 homes on the average, and no more than 700
homes in any case, served from any fiber node, with sufficient
fibers to each node so that each 500-home node could readily be
converted to a node of 150 or 200 subscribers;
(C)
no more than four active components in a cascade from any node;
and
(D)
bidirectional activation with a clean return path permitting a
current minimum average of approximately 512 Kbps upstream.
(2) The Grantee shall implement status monitoring throughout the System at all
hubs and nodes. The status monitoring system must, among other things, monitor signal level and
distortion parameters and alert the Grantee when and where back-up power supplies are being used.
(3)
The System shall provide two-way capability,
(c) Technical Standards: The Cable System shall meet or exceed the technical standards set
forth in 47 c.F.R. § 76.601 and any other applicable technical standards.
(eI) Interconnection
(1) The Grantee shall design its System so that it may be interconnected with other
cable systems or similar communications systems in the area.
(2) Upon request of the City, the Grantee shall interconnect with any other Cable
Communications System within the City, or adjacent to the City, on fair and reasonable terms for
interchange of PEG programming, emergency alerts, and I-Net transmissions. In the event of a
dispute, the City Manager may issue an order establishing the terms and conditions under which
interconnection shall occur, and the Grantee shall comply with the order.
(3) The City may grant reasonable extensions of time to interconnect or rescind its
request to interconnect upon petition by the Grantee to the City.
(4) The Grantee shall cooperate with any interconnection corporation, regional
interconnection authority, state or federal regulatory agency which may be hereafter established for
the purpose of regulating, facilitating, fmancing or otherwise providing for the interconnection of
communications systems.
(e) Emergency Alert System
(1) The Grantee shall install and maintain for use by the City an Emergency
Alert System ("EAS") meeting all applicable requirements of federal law,
5: SYSTEM FACILITIES, EQUIPMENT AND SERVICES
(2) The Grantee's System shall incorporate an emergency override that is
remotely activated by telephone and allows a representative of the City to override at least the audio
on all channels on the Grantee's System, without the assistance of the Grantee, in the event of
emergency or for reasonable tests.
(3) The Grantee shall provide, in a location designated by the City, all equipment
for use of the emergency override, In the event of an emergency or disaster, upon the request of the
City Manager, the Grantee shall make its override facilities available to the City for emergency use.
(4)
override or EAS.
The Grantee shall cooperate with the City in any test of the emergency
(j) Coordination of Trenching
(1) Grantee shall provide the City with reasonable advance notice of any plans to
install underground facilities in the City's public rights-of-way, so that the City may at its discretion
install conduit and/or fiber of its own at the same time. The City shall provide Grantee with
reasonable advance notice of any planned street openings in the City's public rights-of-way, so that
Grantee may at its discretion install facilities of its own at the same time.
(2) Grantee and the City shall work together to develop routine procedures by
which this coordination can be accomplished,
(g)
Updating
(1) No later than October first of each year of the franchise term, beginning
with the first October 1 date occurring after the effective date of this Agreement and continuing
until the franchise is either terminated or renewed, Grantee shall provide $400,000 for the
purpose of updating the Cable System. Such monies shall not be used for operational, repair,
maintenance, replacement, or line extension purposes, but shall be used to improve the
technology and capabilities of the existing System.
(2) The City and Grantee shall jointly determine how to most appropriately
expend such monies for updating the Cable System. Updating monies shall be expended as
agreed by the City and Grantee, provided that on each October first, any monies on whose
expenditUre the City and Grantee have been unable to agree since the preceding October first
shall be distributed equally among the then basic subscribers on their statements for that
month.
(3) Updating monies may be expended as such become available, may be
advanced on account for expenditUre, or may be invested for later expenditUre along with all
interest earned thereon, as may be agreed by the City and Grantee. An agreement on any of these
three uses shall satisfy the requirement for agreement stated in Section 5(g)(2).
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
6.
CHANNELS AND FACILITIES FOR PUBLIC. EDUCATIONAL AND
GOVERNMENTAL USE
(a) Access Channels
(1) The Grantee shall make available to all Subscribers on the System at least five (5)
video Channels for public, educational and governmental use, which Channels shall be in addition to
any capacity provided on the Institutional Network pursuant to Section 6(h).
(2) In addition to the Channels specified in subsection 6(a)(1), the City may require
the Grantee to make available additional video Channels pursuant to the criteria in this subsection
6 (a) (2). Such additional channels shall be provided by the Grantee within ninety (90) days after a
written request from the City when such criteria are fulfilled,
(A)
(B)
(C)
Public Access: Grantee shall provide an additional channel whenever all
the channels set aside by the City for public access programming are
programmed with qualified programming at least eighty percent
(80%) of the cumulative time of 70 hours per week, over a
consecutive sixteen (16) week period. All qualified programming
shall count in this measurement for the actual running time shown.
Repeat programs as defined in Section 6(a) (2) (D) (i) are qualified
programming only to a maximum of fifteen percent (15%) of total
qualified programming, Programs which are neither locally produced
programming nor programming related to the City or region may be
qualified programming only to a maximum of fifty percent (50%) of
total qualified programming.
Educationa/ Access: Grantee shall provide an additional channel
whenever any of the channels set aside by the City for educational
access programming is programmed with qualified programming at
least eighty percent (80%) of the cumulative time of sixty hours per
week over a consecutive sixteen (16) week period. All qualified
programming shall count in this measurement for the actual running
time shown. Repeat programs as defmed in Section 6 (a) (2) (D) (i) are
qualified programming only to a maximum of twenty-five percent
(25%) of total qualified programming,
Governmental Access: Grantee shall provide an additional channel
whenever all the channels set aside by the City for governmental
access programming are programmed with qualified programming at
least eighty percent (80%) of the cumulative time of sixty hours per
week over a consecutive sixteen (16) week period. All qualified
programming shall count in this measurement for the actual running
time shown, Repeat programs as defined in Section 6(a)(2)(D)(i) are
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
qualified programming only to a maximum of fifty percent (50%) of
total qualified programming.
(D)
As used in this subsection 6(a)(2):
(i)
(ii)
(iii)
(iv)
"repeat program" means the running time of any program
only to the extent it is shown more than four (4) times during
the test hours over the applicable measurement period (e.g"
16 weeks in Section 6(a)(2)(A)).
"locally produced programming" means programming (a)
produced within the City, or (b) produced by any City
resident or any agency, public or private, which provides
services to City residents within the City, regardless of the
location at which the programming was produced.
"programming related to the City" and "programming related
to the Region" means programming which addresses the
educational, political, social or cultural interests of any
segment of the residents of the City or of the Region. For
public access programming, the programming must also
relate to the City or the Region,
"qualified programming" except as specified more particularly
above, includes any material carried on the access channels,
except for "bulletin board" material where the same text (or
video and text) screen is sent simultaneously to all system
subscribers. The term "qualified programming" includes
bulletin board material if the material consists of multiple and
different text (or video and text) screens transmitted to
different Subscribers simultaneously or where the content of
the bulletin board can be selected by a viewer, even if the
resulting message is then available to all viewers of the
channel. No more than one additional channel may be
triggered based in whole or in part on such interactive
bulletin board material.
(3) The Grantee will provide any Access Channels on the basic tier throughout
the life of the Franchise, or if there is no basic tier, shall provide the Access Channels as part of the
service provided to any Subscriber, at no additional charge, and so that the channels are viewable by
the Subscriber without the need for additional equipment. If Channels are selected through a menu
system, the Access Channels shall be displayed as prominently as commercial programming choices
offered by Grantee,
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(4) If Grantee's System carties local broadcast stations in a high definition
format, any PEG channel shall also be transmitted in such a high definition format upon request
of the entity managing that PEG channel.
(5) Access channel assignments shall be the same throughout the System. Access
channel assignments should not be changed unless there is good cause and the access channel
programmer consents to the change. Such consent to a channel assignment change shall not be
unreasonably withheld. Any such reassignment must be to a Channel of technical quality at least
equivalent to that of other Channels on the System. In the event of such a reassignment, Grantee
shall pay the costs of all equipment, advertising, and promotional materials reasonably required due
to the reassignment, and shall provide notices to educate viewers as to the reassignment. In the
event Grantee makes any change in the Cable System and related equipment, or facilities or in its
signal delivery technology, which would have a material adverse impact on the transmission or signal
quality of Access programming, the Grantee shall at its own expense take all necessary steps to
ensure that, at a minimum, such quality is maintained at no less than the previous level.
(6) If any video channel reserved for PEG use is digitally compressed, the
additional capacity gained from that compression (over and above the capacity needed to carry
the original access channel) shall continue to be controlled by the entity that manages that PEG
channel, and may be used by that entity for PEG purposes upon a reasonable showing of need or
interest in using such capacity.
(7) To the extent that the resources that determine access to and use of
Grantee's system are not expressed solely in terms of channels (for example, if Grantee employs
on-demand delivery that relies on stœage capacity on file servers), Grantee shall upon request
provide each entity managing a PEG channel with a pro rata share of the system's maximum
capacity in such other resources, proportional to the ratio of the original analog PEG channel to
the total count of 6 MHz analog channels that could be carried on the system. In particular, and
without limitation, Mediacom must provide the necessary file servers and other equipment to
enable the public, educational, and governmental entities that program the PEG channels to
store programs for random access and allow subscribers to search for and retrieve such
programs.
(8) If Grantee makes changes to its cable system that require improvements
to access facilities and equipment - for example, transition to a new mode of digital
transmission - Grantee shall within 30 days provide any necessary additional facilities or
equipment needed so that the PEG facilities and equipment may be used as intended, including,
among other things, so that live and recorded programming can be cablecast efficiently to
subscribers.
(9) Grantee shall provide sufficient funding to all entities managing PEG
channels to cover completely the costs of any facilities or equipment that may be required to
implement any requirements imposed on PEG channels by the Federal Communications
Commission, or any other agency or governmental unit, for captioning or video description.
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(10) The City agrees that its designated Educational and Governmental access
channels and capacity are not to be used for any for-profit, commercial purposes by the City or third
parties. Use of such channels or capacity is not "for profit" or "commercial" solely because an access
programmer or access channel manager has more revenues than expenses, or because the activity in
which it is engaged is provided on a for-profit basis by private entities in other communities or the
City. Nothing prevents the City from authorizing charges to users or viewers to pay for such non-
commercial services such as fees for video class instruction or charges to recover the cost of special
use equipment, or as they may be required to charge under applicable law.
(b) Capital Grant for Access Equipment and Facilities
(1) In addition to the franchise fee, the Grantee shall deposit two and one-half
percent (2,5%) of its gross revenues annually, paid at the same time and in the same manner as the
franchise fee, in an interest-bearing account upon which the City may draw for capital support for
PEG and I-Net use, in its sole discretion, at any time while the Franchise remains in effect (the
"PEG Capital Support Fund"). Grantee may draw upon the PEG Capital Support Fund for capital
expenditures for public access in the City upon prior approval by the City. Any unused funds will
return to the Grantee at the end of the franchise term.
(c) PublitAccess
(1) Grantee shall have a continuing obligation, throughout the life of this
franchise, to provide studio production facilities, production assistance, editing, scheduling and
playback, training, outreach, management, and administrative support for users of the public
access channels. The ability to produce and show programming on the public access channels
shall be available to the public generally on a first-come, first-served basis, and shall not require
Applicant to exercise editorial control over such use, pursuant to 47 U .S.C, § 531(e).
(2) In particular, and without limitation, Grantee shall ensure that production
facilities and support are available at least sixty-eight (68) hours per week to provide to
interested members of the public training and assistance in the use of PEG access production
equipment and assistance in the production of PEG programming, The Grantee shall maintain
all PEG access equipment, provide for the check-in and check-out of PEG access equipment, and
schedule the use ofthe Grantee's facilities by persons producing PEG programs,
(d) Return Feed From Faci/ities
(1) Grantee shall connect the following access origination sites by dedicated
fiber-optic upstream feeds to the headend, including both the fiber itself and all terminal
equipment necessary for transmission of the signals for each access channel to be originated
there.
(A)
(B)
Public access studio
Public school central administrative office at The Forum, Cheney
Road
Master control room at Loras College
(C)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(D)
City Hall Annex
(2) The dedicated connections required by Section 6(d)(1) shall be designed and built
to include all equipment, including but not limited to laser transmitters, modulators, and processors,
drops and wiring, so that each such center can send signals to the headend on at least two channels
initially and up to two additional channels if additional downstream channels are activated for PEG
use; and so that the facilities can each remotely and without assistance from the Grantee or access to
its headend (1) receive signals from distant locations; (ii) route signals originated at that center or at
other locations onto any of the access channels on the regular subscriber network; and (iii) otherwise
control the signals to allow for smooth breaks, transitions, insertion of station IDs and other
material. Grantee shall bear the cost of acquiring all equipment necessary to meet this requirement.
(3) Grantee shall ensure that programming received via the upstream feeds is
retransmitted as sent by the PEG programmer, without changing the attributes of the signal in
such a way as to effectively degrade the output. The facilities and equipment provided would
not be adequate if there would be more deterioration on channels set aside for public,
educational and government use on the I-Net or subscriber network than on other channels on
the cable system. Deterioration refers to any signal problem reflected in FCC technical
standards, including, but not limited to, ghost images and other interference, distortions,
degradation of chroma and luminance, and imperfections.
(e) Management of Channels
(1)
The five initial access channels shall be managed as follows:
(A) public access: by Grantee
(B) governmental access: by the City
(C) educational access: one by the Dubuque Community School
District; one jointly by the other educational institutions in the City
(2) The City may at any time designate one (1) or more entities, including a
non-profit access management corporation, to perform any or all of the following functions:
(A) to manage any Public, Educational, or Government Access
Channel;
to establish policies for the use of access channels and facilities;
and/or
to manage any necessary scheduling or allocation of capacity on
the Institutional Network.
(B)
(C)
(f) Editorial ControL' Except as expressly pennitted by federal law, the Grantee shall not
exercise any editorial control over the content of programming on the designated Public,
Educational and Governmental Access Channels (except for such programming as the Grantee may
produce and cablecast on such Channels).
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(g) Cable Seroice to Certain Facilities
(1) Upon the request of the City, Grantee shall without charge provide one activated
outlet at each school and each facility owned or leased by the City, as shall be designated by the
City from time to time.
(2) Grantee shall also provide any converters, decoders, or similar equipment
necessary for user equipment (such as television sets and computers) to receive all subscriber
network services at each such outlet, with all capabilities or options afforded at a given time by
the System. Grantee shall supply one converter, decoder, or similar item per site, and shall
ensure that all signals are provided at such outlets with sufficient strength that they can be
further amplified to distribute them throughout the site.
(3) Grantee shall charge only its direct cost of installing any additional
subscriber network drops and service outlets requested by a school or the City at a facility
owned or leased by the City.
(4) Whenever necessary, or dictated by changes in Grantee's technology,
Grantee shall upgrade all converters, decoders, or similar equipment provided pursuant to this
section, in order to ensure that the site can receive all services offered by Grantee.
(h) Institutional Network
(2)
Definitions. For purposes of this Section 6(h):
(A) "Dark Fiber" means fiber optic strands that are capable of carrying
voice, video, and data transmissions but that have not yet been
activated.
"Institutional Network" or "I-Net" means a fiber-optic network
related to the Grantee's cable system; such network is to be designed
and constructed by the Grantee and is not generally available to
subscribers of the Grantee's cable system.
"Work" means whatever is required of the Grantee to perform and
complete its duties under this Section. The term does not refer to
activities of the Grantee required to perform and complete its duties
under other Sections of this Franchise Agreement, including but not
limited to construction of subscriber network facilities.
Fiber Construction
(A) The Grantee will construct the I-Net at the Grantee's expense,
linking public, educational and governmental facilities in the City, in
accordance with the conditions set forth in this Franchise Agreement.
The I-Net shall be a bidirectional, fully fiber-optic network designed
and constructed with single-mode fiber, in a design so that each of
the designated service locations can originate and receive fully
interactive video, data and voice signals,
(B)
(1)
(C)
(B)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(C)
(D)
(E)
(F)
(G)
(H)
(1)
0)
The Grante~ shall install I-Net fiber to specified sites as designated
and described in Exhibit B,
The Grantee shall collocate I-Net fiber with subscriber network fiber
whenever reasonably feasible based on cable industry practices. The
I-Net fibers shall be separate from any fibers utilized for the
subscriber network, and the City shall have only such rights in the I-
Net fibers as are set forth in Section 6(h)(6).
At the headend, I-Net fibers shall be terminated and labeled using
industry standard connectors in an area within the headend facility
(the "Headend I-Net Service Area"). The Headend I-Net Service
Area shall have space for four standard nineteen-inch racks for the I-
Net Users' use in a secure building, sufficient heating and air
conditioning, 48 V DC and 120 V AC power shall be available for
the Headend I-Net Service Area, including backup power as specified
for the system generally.
At each aggregation site for I-Net traffic ("Aggregation Site"), I-Net
fibers shall be terminated and labeled using industry standard
connectors in an area within the Aggregation Site (an "Aggregation
Site I-Net Service Area").
The Grantee shall have personnel available to provide City and other
User personnel with immediate access to its Headend I-Net Service
Area from 8 a,m. to 6 p,m, each business day, and at all other times
shall have personnel available by pager to provide City and other
User personnel with access within forty-five minutes of a call.
If the Grantee and the City conclude that sites other than the
Headend and Aggregation I-Net Service Areas would be preferable
for termination of I-Net fibers, they may establish such sites by
mutual agreement,
The Grantee shall make all reasonable efforts to configure the
assigned space in the Headend I-Net Service Area so that all
equipment required by the City and other I-Net Users can readily be
accommodated. The Users shall identify their reasonable power and
HV AC requirements for the Headend I-Net Service Area, and the
Grantee shall cooperate with the Users in satisfying such reasonable
requirements,
Single-mode fibers each will be built to each I-Net site as designated
in Exhibit B. At each I-Net site, at the City's option, either ~) fibers
shall be terminated using industry standard connectors at a
demarcation point to be agreed upon by the Grantee and the User up
to fifteen feet inside the building entry wall and consistent with the
Grantee's direction of approach to the building, consistent with the
FCC's rules as amended from time to time (the "Demarcation
Point"), or (ii) the Grantee shall provide a coil of fiber-optic cable,
without termination or connector, of a length reasonably requested
by the User to permit the User or the facility owner to bring the
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(K)
(1.)
(M)
(N)
(0)
connection further inside the building beyond that Demarcation
Point in accordance with normal industry practice. Any I-Net fiber
starting at the Demarcation Point and extending outward from the
building shall be deemed to be on the Grantee's side of the
Demarcation Point, and any I-Net fiber starting at the Demarcation
Point and extending further inside the building shall be deemed to be
on the user's side of the Demarcation Point..
The fiber-optic plant shall be installed to industry standards. The
maximum fiber attenuation shall be 0.7 dB/Ian. at 1310 nm, plus a
maximum of 0.2 dB loss for each splice. The average loss shall not
exceed 0.3 dB per connector, The maximum allowed loss shall be
0,75 dB per connector. Maximum signal loss for any link shall not
exceed the manufacturer's passive cable attenuation specifications,
adjusted for cable lengths, splice loss and connector loss. The
Grantee shall provide documentation of acceptance testing.
Grantee shall maintain the I-Net fiber plant at a high level of
reliability and will ensure that such I-Net fiber plant does not have an
unreasonable number of outag~s as compared with other fiber-based
institutional networks provided by cable operators pursuant to cable
franchises,
(i) The fiber I-net shall be considered as experiencing an
"outage" for a user when that user cannot, because of a
problem resulting from the failure of any Grantee-provided
fiber optic network component or Grantee-provided
interconnect, transmit video, voice and/ or data
communications to from and/ or on the I-net.
"Outage" conditions shall not include (A) infrequent
scheduled preventive maintenance as long as fiber optic I-net
users are notified at least five business days in advance; Or (B)
Jòrce majeure.
Aerial cable for the I-Net may be installed free-standing or
overlashed to existing strand. New underground fiber optic cable
shall be buried in conduit composed of concrete or in PVC pipe or
polyethylene pipe.
The Grantee shall begin construction of the I-Net within three
months after the Effective Date. Grantee shall complete
construction of 36% of the I-Net plant by the end of the fltst year
after the Effective Date, an additional 30% by the end of the second
year, an additional 21% by the end of the third year, and the
remaining 13% by the end of the fourth year. The City shall
determine the order in which sites are constructed, within the scope
of these construction milestones. The I-Net shall be completed
within four years after the Effective Date.
All I-Net wiring on the User's side of the Demarcation Point and all
I-Net Headend electronics, Aggregation Site electronics, and I-Net
(ll)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
site electIofiics are the sole responsibility and property of the User,
provided, however, that the City may use capital funds provided
pursuant to this Agreement at its discretion for such wiring and
electIonics. All costs associated with locating -or repairing any failure
which is reported to the Grantee but which subsequently is
determined to have occurred on the User's side of the Demarcation
Point shall be paid for by the User, except to the extent that the
Grantee's negligence or willful action may adversely affect such
equipment or facilities.
Coordination of Design and Construction ofI-Net
(A) The Grantee shall activate I-Net segments in phases as construction
is completed.
The Grantee shall submit detailed site plans for design and
construction of each I-Net segment consistent with Exhibit B at least
forty-five days prior to the anticipated start of construction on that
segment. The City shall review and approve such detailed site plans
before the Grantee begins construction of the segment.
The Grantee shall coordinate its design and construction planning
with the City so that, in addition to the notice provided to the City
pursuant to the system design submission process generally, the City
shall have as much notice as reasonably possible so that it can plan
for activation and use of the I-Net as the Grantee builds out the I-
Net fiber.
(4) Acceptance. Construction standards shall be as specified in the Ordinance.
The acceptance procedure for each I-Net site is as follows: ten (10) days in advance of testing, the
Grantee shall inform the City of an activation test. The City shall have the option to be present at
the test. The Grantee shall perform the test after terminating the fibers on both ends and will
conduct the test from the connector output at both 1310 nm and 1550 nm using an optical time-
domain reflectometer (OTDR) from both ends of the fiber (at the user site and at the headend or
aggregation site). The Grantee shall submit the test results to the City; the City may require re-
testing of the segment if it is not satisfied with the results of the Grantee's tests.
(5) Warranty, The fiber installed by the Grantee pursuant to this Section shall
be warranted against defects in materials and workmanship for 12 months after acceptance. This
warranty is in addition to, and does not relieve the Grantee from, its maintenance responsibilities
pursuant to Section 6(h)(7),
(6) Indefeasible Rights of Use
(A) The City shall possess the indefeasible right to use fiber optic plant
dedicated to the I-Net and any extensions or replacements thereof
installed by the Grantee, subject only to such mechanic's or other
liens as Grantee may have pursuant to state law (the "Indefeasible
Rights of Use"). The Indefeasible Rights of Use shall be perpetual
and shall survive any termination of the franchise agreement.
In order to protect the City's right to continue using the Institutional
Network pursuant to this Franchise Agreement, the Grantee shall
cooperate with the City in recording its indefeasible right of use
(3)
(B)
(C)
(B)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
interest in the fibers with the State Department of Assessments and
Taxation, the City Clerk, or such other office as may be appropriate.
(7) Maintenance, The Grantee shall maintain, repair and, as necessary, replace
I-Net fiber plant on the Grantee's side of the Demarcation Point in accordance with the following
procedures and conditions:
(A)
(B)
(C)
Preventive and Routine Maintenance. The Grantee shall perform routine
and preventive maintenance on I-Net plant in the same time and in
the same fashion as routine and preventive maintenance are
performed for the subscriber network, without charge to the City or
other Users. In the course of performing routine and preventive
maintenance, the Grantee shall use its best efforts to identify
potential trouble conditions warranting repair or replacement of I-
Net plant not bundled together with subscriber network plant. The
Grantee shall as promptly as practicable report potential trouble
conditions to the City.
Service Outages; Outage Categories. For purposes of this Section 6(h), the
term "Service Outage" shall mean any condition or damage affecting
the I-Net plant that precludes or substantially impairs the
transmission of information on the I-Net or a' portion thereof.
Response and restoration times are determined by the category of
service outage as follows:
(i) Critical Outage: Loss of service to one of the fiber routes
feeding a critical facility. A maximum of twenty-five such
critical fiber routes will be designated by the City by written
notice to the Grantee after the Effective Date and before
completion of the I-Net. The City may subsequently change
which fiber routes are designated critical, as long as the total
number does not exceed the maximum of twenty-five
specified above. Any such change shall be provided by the
City to the Grantee in writing.
Major Outage: Totalloss of service to an I-Net site other
than one listed as critical pursuant to Section 6 (h) (7) (B) (i) ,
Minor Outage: Loss of service on a single fiber to any I-Net
site where any traffic can be placed immediately on another
fiber at that site. If it is not possible to reroute traffic in this
way immediately, the outage is a Major Outage.
Service Interruption: Reduction in signal throughput to
the point where the signal on a circuit falls below
acceptable standards.
fusponse to Outages. The response time (the point at which the
Grantee is engaged in restoration of service) for all Service Outages,
whether reported to the Grantee by the User or independently
identified by the Grantee, shall be as specified in Section 6 (h) (7) (F).
Upon identification of a Service Outage, the Grantee shall, within
such response time, have qualified personnel on site to investigate the
(ii)
(iii)
(iv)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
outage, assess the cause and commence necessary repairs, To the
extent that necessary repairs resulting in restoration of connectivity
on the I-Net can be immediately accomplished, the Grantee shall
effect such repairs in connection with its investigation of the cause of
the Service Outage. To the extent that repairs cannot be immediately
effected, the Grantee shall, within the response time, inform the City
and any other affected User of the apparent cause of the Service
Outage, the anticipated time for restoration of connectivity.
Restoration of Service.
(i) The Grantee shall, to the maximum extent practicable, effect
restoration of connectivity of any category of service
involving I-Net plant that is bundled together with subscriber
network plant at the same time as restoration of co-located
subscriber network plant.
The Grantee shall effect restoration of connectivity of I-Net
plant that is not bundled together with subscriber network
plant as prompdy as practicable within the estimated
restoration times reported to the City pursuant to Section
6 (h) (7) (F) and shall use its best efforts to effect such
restoration within the service objectives set forth in Section
6(h)(7)(F); provided, however, that in the case of any Service
Outage affecting I-Net plant that is not bundled together
with subscriber network plant, the City may, pursuant to a
work order issued to the Grantee ("Work Order"), require the
Grantee to engage the services of one or more subcontractors
to effect such restoration.
In the case of a Service Outage involving more than one
category of Service Outage or multiple service outages
involving more than one category of Service Outage, the
Grantee shall restore connectivity in the order specified in
Section 6 (h) (7) (B), or such other order of priority as the City
reasonably requires. In all cases involving Service Outages
resulting from I-Net plant that is bundled together with
subscriber network plant, the Grantee shall effect restoration
of connectivity of any category of service involving I-Net
plant that is bundled together with subscriber network plant
at the same time as restoration of co-located subscriber
network plant.
Cost of Maintenance. The Grantee shall provide maintenance for I-Net
fiber plant without any charge to the City or any other User,
Riisponse and Restoration Times. The standards for response and
restoration of service as specified in Sections 6(h) (7) (B) (iv) and
6(h)(7)(D) are:
(i) Critical Outage: Response on site within two hours,
minimum temporary repair (fully operational connectivity,
(D)
(ll)
(iii)
(E)
(F)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(G)
(H)
(8)
Use
(A)
(B)
(C)
(ii)
end to end) completed within four hours, permanent repair
(conforming to all applicable standards as provided herein)
within twenty-four hours.
Major Outage: Response within two hours between 8 a.m.
and 6 p,m. on business days and four hours otherwise;
temporaty repair completed within six hours, permanent
repair within two business days.
Minor Outage: Response within two hours between 8 a.m.
and 6 p,m, on business days, four hours otherwise;
temporary repair completed within eight hours, permanent
repair within three business days.
Service Interruption: Response within two hours during
normal business hours, eight hours otherwise; temporary
repair completed within eight hours, permanent repair
within five business days.
(iii)
(iv)
Where, for reasons beyond the Grantee's control, restoration of
service cannot be completed in the above time periods even with the
exercise of all due diligence (for example, where the Grantee is
delayed in obtaining access to poles or conduits), the Grantee shall
complete the restoration of service in the shortest time possible.
For purposes of this Section 6(h), the term "Maintenance" shall mean
any action required to restore physical fiber optic connectivity on the
Grantee's side of the Demarcation Point to the performance
standards specified in Section 6(h)(2).
If any fiber optic cable in which the City has an Indefeasible Right of
Use should be cut or damaged, and the responsible party is identified,
then the City shall support the Grantee's claims for damages against
the responsible party.
The parties authorized to use the I-Net ("Authorized Users") shall
be, to the extent approved by the City:
(i) those entities for which I-Net sites will be constructed
pursuant to Exhibit B;
public, educational, and governmental entities in the City of
the same sorts as those specified in Section 6(h)(8)(A)(i); and
all political subdivisions of the State located within the
external boundaries of the City, and their agencies and
subdivisions.
The City shall not use, or permit any third party to use, the I-Net for
resale or for the transmission of third party traffic.
For purposes of this subsection 6 (h) (8), "third party traffic" shall
mean communications not involving at least one Authorized User.
(ii)
(iii)
6: CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
The Grantee shall have no control, responsibility or liability for the
signals distributed over the fiber optic components of the I-Net by
the City or other Authorized Users or for their benefit.
The I-Net obligations included in this Agreement do not create any
rights in or enforceable by any Authorized Users, or other Users,
other than the City.
The conditions specified in this Section 6 (h) (8), and generally in this
Section 6(h), shall not apply to any facilities or equipment other than
the dark fiber constructed by the Grantee pursuant to Section 6(h)(2),
except to the extent and during the period that such other facilities or
equipment are connected to and operating in conjunction with the
dark fiber constructed by the Grantee pursuant to Section 6(h)(2).
(9) Liability, The Grantee shall indemnify the City, pursuant to the procedures for
indemnification in the Cable Ordinance, against any third-party action against the City arising out of
the Grantee's negligence, up to the maximum potential liability provided by the Limited Waiver of
Governmental Immunity, Local Government Tort Claims Act. This provision shall not be
construed to grant a right of action to any tlilld party, nor to require any indemnification of the
Grantee by the City.
(10) Security. The Grantee shall not in any way compromise the physical,
optical, electronic, or signal transmission security of User communications transmitted over the I-
net.
Subcontractors
(A) A subcontractor is an entity which has a direct contract with the
Grantee to perform a portion of the Work.
The Grantee shall not enter into a subcontract with a proposed
subcontractor with reference to whom the City has made timely and
reasonable objection, The Grantee shall not be required to
subcontract with any party to whom the Grantee has objection.
All subcontracts shall afford the Grantee rights against the
subcontractor which correspond to those rights afforded to the City
against the Grantee herein.
(12) Capital Grants for I-Net Equipment, In addition to the capital grants
specified elsewhere herein, the Grantee shall provide a capital grant in the amount of $500,000 at the
beginning of the franchise term [if the proposed franchise term is longer than five years, add
language providing for additional grants at the conclusion of each five-year period that
elapses since the beginning of the franchise term], to be used for I-Net equipment and facilities
or, at the City's discretion, for other PEG equipment and facilities,
(13) Other Provisions
(A) If the Grantee performs any of the Work knowing it involves a
recognized and material error, inconsistency or omission in this
Section without notice to and approval of the City, the Grantee shall
bear the cost of correction, If the City permits the Grantee to
perfonn any of the Work knowing it involves a recognized and
material error, inconsistency or omission in this Section without
notice to and approval of the Grantee, the City shall bear the cost of
(D)
(E)
(F)
(11)
(B)
(C)
7: FRANCHISE FEE
(B)
(C)
(D)
(E)
(F)
correction, The Grantee's provision of its plans to the City shall not
be construed to render the City responsible for the Grantee's
planning or execution of the Work or for detecting any errors,
inconsistencies, or omissions therein, except to the extent specifically
set forth herein.
The Grantee shall obey and pay for all permits, fees and licenses
necessary and ordinary for all actions required under this Franch!se
Agreement, The Grantee shall comply with all lawful requirements
applicable to the Work and shall give and maintain any and all notices
required by applicable law pertaining to the Work,
The Grantee shall supervise and direct the Work, using the Grantee's
skill and attention in accordance with accepted construction industry
practices, The Grantee shall be solely responsible for and have
control over design and construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the
Work under this Section, unless this Section provides for other
specific instructions concerning these matters.
The Grantee shall keep the work areas related to the Work
reasonably clean of debris generated by the Grantee during
performance of the Work. Upon fmal completion of Work, the
Grantee shall clean its work areas and remove all waste generated by
the Grantee therefrom,
The City shall have access to the Work at all times from
commencement of the Work through its completion pursuant to
applicable law, The Grantee shall take all reasonable steps to provide
access when requested, provided, however, that such access shall not
unreasonably impede efforts of the Grantee, its subcontractors or
others engaged in the Work.
The indemnification, insurance, and other right-of-way management
provisions of the Ordinance and this Franchise Agreement shall
apply to the Work carried out by the Grantee under this Section (as
distinct from the performance of the I-Net).
(i) Costs and Payments Not Franchise Fees: The parties agree that any costs to the Grantee
associated with the provision of support for PEG access pursuant to this Agreement, and any
payments made to the City pursuant to Section 6 of this Agreement, do not constitute and are not
part of a franchise fee, and fall within one or more of the exceptions to 47 u,s,c. § 542. The
facilities, equipment and capacity provided for PEG use shall be available at no charge to users,
including the City or the entity that manages the channel.
7.
FRANCHISE FEE
(a) Payment to City
(1) Each year, as compensation for use of Public Rights-of-Way, the Grantee
shall pay to the City a Franchise fee of five percent of Gross Revenues,
7: FRANCHISE FEE
(2) For each whole OF partial year that this Agreement or any extension
thereof is in effect, the franchise fees due to the City shall be calculated on an annual basis
corresponding to the City's fiscal year. The Grantee shall make its payment of franchise fees on
the first day of the fiscal year for which the fees are calculated and due.
(3) The amount due on the first day of the fiscal year shall be no less than
ninety (90) percent of the total franchise fees anticipated to be due for that year, as determined by
the City ninety (90) days prior to the beginning of the applicable fiscal year and communicated
to the Grantee.
(4) No later than the twentieth day after the end of each fiscal quarter, the
Grantee shall report to the City, in such detail as the City may require, its gross revenues for the
fiscal quarter immediately preceding, and shall remit therewith the amount by which any fee due
for that quarter exceeds twenty-five percent (25%) of the amount paid on the first day of that
fiscal year. In the event the amounts paid the City during the fiscal year exceed the total amount
due for that fiscal year, the excess shall be refunded to the Grantee within twenty (20) days after
the filing of its fourth quarterly report and its giving the City notice that a refund is due.
(5) All payments due the City shall be made and delivered to the office of the
City Manager or his designee, no later than noon local time of the date due, or, if those offices
are closed on that day, no later than noon local time on the next day such offices are open for
business.
(b) Final Payment: Upon the termination, transfer, sale, or revocation of this Agreement,
the Grantee shall immediately submit to the City Manager a financial statement showing the
Gross Revenues of the Grantee for the time elapsed since the last quarter for which the Grantee
has paid in full to the City the required franchise fees, The Grantee shall pay to the City all fees
due not later than thirty (30) days following such termination, but prior to the termination of its
performance bond,
M Supporting Injòrmation: Each Franchise fee payment shall be submitted with supporting
detail and a statement certified by the Grantee's chief fmancial officer or an independent certified
public accountant, reflecting the total amount of monthly Gross Revenues for the payment period
and a breakdown by major revenue categories (such as basic service, cable programming service,
premium service, etc.). The City shall have the right to require further supporting information.
(d) Late Payments: In the event that any payment due the City is not made on or before the
applicable due date and hour ftxed in any section of this Agreement or the Cable Ordinance, the
payment shall be considered delinquent and in violation of this Agreement. Each twenty-four-hour
period of part thereof that a payment is delinquent shall be considered a separate violation. Each
violation automatically shall be assessed two hundred dollars ($200.00) due and payable with the
payment which is delinquent. In addition, the Grantee shall pay interest charges computed from
such due date, at an annual rate equal to the commercial prime interest rate of the City's primary
8: PERFORMANCE GUARANTEES AND REMEDIES
depository bank during the period such unpaid amount is owed, Both the late payment charge and
the interest shall be treated as costs incidental to enforcing the franchise.
(e) Audit
(1) The City shall have the right to inspect and copy records and the rights to audit
and to recompute any amounts determined to be payable under this Agreement, whether the records
are held by the Grantee, an Affiliate, or any other entity that collects or receives funds related to the
Grantee's operation in the City, including, by way of illustration and not limitation, any entity that
sells advertising on the Grantee's behalf.
(2) The Grantee shall be responsible for providing to the City all records necessary
to con[¡rm the accurate payment of Franchise fees, without regard to by whom they are held. The
Grantee shall maintain such records for the term of its Franchise Agreement, and any renewals or
extensions thereof.
(3) The City's audit expenses shall be borne by the City unless the audit discloses an
underpayment, in which case the costs of the audit shall be borne by the Grantee as a cost incidental
to the enforcement of the Franchise. Any additional amounts due to the City as a result of the audit
shall be paid within thirty (30) days following written notice to the Grantee by the City of the
underpayment, which notice shall include a copy of the audit report, If recomputation results in
additional revenue to be paid to the City, such amount shall be subject to interest as speci[¡ed in
Section 7(d).
(4) The Grantee shall maintain its [¡seal and [¡nancial records and have all
relevant [¡seal and fmancial records maintained by others on its behalf in such a manner as to enable
the City to determine Gross Revenues.
8.
PERFORMANCE GUARANTEES AND REMEDIES
(a) Performance Bond
(1) Grantee shall obtain and maintain during the entire term of the Franchise,
and any renewal or extensions thereof, except as provided in Section 8(b) or 8(0)(4) below, a
performance bond in the City's favor, in the amount of $1,000,000, to ensure the Grantee's faithful
performance of its obligations.
(2)
The performance bond shall provide the following conditions:
(A)
There shall be recoverable by the City from the principal and surety,
any and all fmes and penalties due to the City and any and all
damages, losses, costs, and expenses suffered or incurred by the City
resulting from the failure of the Grantee to faithfully comply with the
material provisions of this Agreement, the Cable Ordinance, and
other applicable law; comply with all orders, permits and directives of
any municipal agency or body having jurisdiction over its acts or
8: PERFORMANCE GUARANTEES AND REMEDIES
defaults; pay fees due to the City; or pay any claims or liens due the
City. Such losses, costs and expenses shall include but not be limited
to reasonable attorney's fees and other associated expenses.
(3) The performance bond shall be issued by a surety with an A-lor better
rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the
approval of the City; and shall contain the following endorsement:
"This bond may not be canceled, or allowed to lapse, until
sixty (60) days after receipt by the City, by certified mail, return
receipt requested, of a written notice from the issuer of the bond of
intent to cancel or not to renew."
(4) Reduction of Bond. Upon written application by the Grantee, the City may,
at its sale option, in writing, permit the amount of the bond to be reduced or waive the requirements
for a performance bond. Reductions granted or denied upon application by the Grantee shall be
without prejudice to the Grantee's subsequent applications or to the City's right to require the full
bond at any time thereafter. However, no application shall be made by the Grantee within one (1)
year of any prior application.
(b)
Letter of Credzt
(I) In addition to the performance bond required under Section Sea), the
Grantee may file and maintain with the City an irrevocable letter of credit from a financial institution
licensed to do business in Iowa in the amount of $200,000, to serve the same purposes as set forth
therein, The form and content of the letter of credit shall be approved by the City.
(2) The Grantee and its surety shall be jointly and severally liable under the terms of
the letter of credit as specified in Section 8(a),
(3) The letter of credit shall provide for thirty (30) days' prior written notice to the
City of any intention on the part of the Grantee to cancel, fail to renew, or otherwise materially alter
its terms.
(4) The letter of credit shall be released only upon expiration of the Franchise or
upon the replacement of the letter of credit within the time specified herein.
(c) llights Cumulative: The rights reserved to the City herein are in addition to all other rights
of the City, whether reserved herein or authorized by applicable law, and no action, proceeding, or
exercise of a right with respect to such performance bond or letter of credit will affect any other
right the City may have. Neither the filing of a letter of credit with the City, nor the receipt of any
damages recovered by the City thereunder, shall be construed to excuse faithful performance by the
Grantee or limit the liability of the Grantee under the terms of its Franchise for damages, either to
the full amount of the letter of credit or otherwise,
8: PERFORMANCE GUARANTEES AND REMEDIES
(d) Security Fund Procedures
(1) The performance bond specified under Section 8(a), and the letter of credit
specified under Section 8(b), shall be referred to jointly or severally as the Security Fund,
(2)
The following procedures shall apply to drawing on the Security Fund:
(A)
(B)
(C)
(D)
(E)
If the Grantee fails to make timely payment to the City of any
amount due under this Agreement or applicable law, or fails to
compensate the City within ten (10) days of written notification
that such compensation is due, for any damages, costs, or expenses
the City suffers or incurs by reason of any act or omission of the
Grantee in connection with this Agreement or its enforcement, or
fails, after ten (10) days' written notice, to comply with any
provision of this Agreement or the Cable Ordinance that the City
determines can be remedied by an expenditure of the security, the
City may withdraw the amount thereof, with interest and any
penalties, from the Security Fund.
Within three (3) days of a withdrawal from the Security Fund, the
City shall mail, by certified mail, return receipt requested, written
notification of the amount, date, and purpose of such withdrawal to
the Grantee.
If at the time of a withdrawal from the Security Fund by the City,
the amounts available are insufficient to provide the total payment
towards which the withdrawal is directed, the balance of such
payment shall continue as the obligation of the Grantee to the City
until it is paid,
No later than thirty (30) days after mailing of notification to the
Grantee by certified mail, return receipt requested, of a withdrawal
under the Security Fund, the Grantee shall restore the Security
Fund to the total amount specified herein.
Upon termination of the Franchise under conditions other than
those stipulating forfeiture of the Security Fund, the balance then
remaining in the Security Fund shall be returned to the Grantee
within ninety (90) days of such termination, provided that there is
then no outstanding default on the part of the Grantee.
(e) fumedies: In addition to any other remedies available at law or equity, the City may, to
the extent consistent with federal and state remedy law, apply anyone or a combination of the
following remedies in the event the Grantee violates the Cable Ordinance, this Franchise
Agreement, or applicable state or federallaw:
8: PERFORMANCE GUARANTEES AND REMEDIES
(1) Apply any remedy provi¡!ed for in this Agreement.
(2) Revoke the Franchise or shorten the term pursuant to the procedures specified
in this Agreement.
(3) Impose penalties available under the Cable Ordinance or other applicable state
and local laws for violation of City ordinances.
(4) In addition to or instead of any other remedy, seek legal or equitable relief from
any court of competent jurisdiction.
(5) Any action, proceeding or exercise of a right by the City under this Section does
not constitute an election of remedies or a waiver of any other right the City may have, including the
right to seek specific performance of a franchise obligation, except that the City's election of
liquidated damages shall take the place of any right to obtain actual damages over and above the
payment of any amounts otherwise due.
(j) Liquidated Damages: Because the Grantee's failure to comply with certain provisions of
the Franchise and this Franchise Agreement will result in injury to the City, and because it will be
difficult to estimate the extent of such injury, the City and the Grantee agree to the following
liquidated damages for the following violations of the Franchise and of this Agreement, which
represent both parties' best estimate of the damages resulting from the specified violation, To
maintain that estimate, the parties agree that the liquidated damage amounts are in 2005 dollars and
shall be increased each year by the increase in the u.S. City Average of the Consumer Price Index.
(1) For failure to substantially complete construction in accordance with this
Agreement: $2,000/ day for each violation for each day the violation continues;
(2) For failure to comply with requirements for public, educational and
governmental use of the System: $l,OOO/day for each violation for each day the violation continues,
in addition to any monetary payment due under this Agreement or the Cable Ordinance;
(3) For failure to supply information, reports, or filings lawfully required under
the Franchise Agreement or applicable law or by the City: $200/ day for each violation for each day
the violation continues;
(4)
For violation of customer service standards: $200 per violation;
(5) For failure, unless such failure is beyond the Grantee's control, of the system to
perform in the event of a public emergency: $250 per occurrence;
(6) For failure to render any payment due to the City: $100 per day, in addition
to any monetary payment due under this Agreement or the Cable Ordinance;
8: PERFORMANCE GUARANTEES AND REMEDIES
(7) For failure to me, obtain or maintain any required Security Fund in a timely
fashion: $50 per day;
(8) For failure to restore damaged property: $50 per day, in addition to the cost
of the restoration as required elsewhere herein or in a Franchise Agreement;
(9)
For violation of technical standards established by the FCC: $100 per day;
(g) Shortening, &iVo"'tion, or Termination ofPranchise
(1) Upon completion of the term of any Franchise granted under this Ordinance, if a
new, extended, or renewed Franchise is not granted to the Grantee by the City, the Grantee's right
to occupy the Public Rights-of-Way shall terminate, subject to applicable federal1aw.
(2) The City shall have the right to revoke the Franchise (or, alternatively, at the
City's discretion, pursuant to the same procedures set forth in this Section 8(g), to shorten the term
of the Franchise to a term not less than thirty-one (31) months from the date of the action
shortening the Franchise term), for the Grantee's failure to construct, operate, or maintain the Cable
System as required by this Ordinance or a Franchise Agreement; for defrauding or attempting to
defraud the City or Subscribers; or for any other material breach of this Agreement or material
violation of the Cable Ordinance.
(3) To revoke the Franchise, the City shall give the Grantee written notice of the
default in its performance. If within thirty (30) calendar days following such written notice from the
City to the Grantee, or such other period as the Franchise Agreement shall require or the Grantee
and the City shall agree, the Grantee has not taken corrective action to the satisfaction of the City,
the City may give written notice to the Grantee of its intent to revoke the Franchise, stating its
reasons; provided that no opportunity to cure need be provided where the Grantee is shown to have
defrauded or attempted to defraud the City or its Subscribers,
(4) Prior to revoking the Franchise, the City shall hold a public hearing, on thirty
(30) calendar days' notice, at which time the Grantee and the public shall be given an opportunity to
be heard. Following the public hearing, the City may determine whether to revoke the Franchise
based on the information presented at the hearing, and other information of record, or, where
applicable, grant additional time to the Grantee to effect any cure, If the City determines to revoke
the Franchise, it shall issue a written decision setting forth the reasons for its decision, A copy of
such decision shall be transmitted to the Grantee.
(5) If the City revokes the Franchise, or if for any other reason the Grantee
abandons, terminates, or fails to operate or maintain service to its Subscribers, the following
procedures and rights are effective:
(A)
The City may require the former Grantee to remove its facilities and
equipment at the former Grantee's expense and restore affected sites
as required in the Cable Ordinance, or permit the former Grantee to
abandon such facilities in place. If the former Grantee fails to do so
9: MISCELLANEOUS PROVISIONS
within a reasonable period of time, the City may have the removal
done at the former Grantee's and/or surety's expense.
(B)
The City may require the former Grantee to continue operating the
Cable System as specified in Section 4(b).
(C)
In the event of revocation, the City, by resolution, may acqwre
ownership of the Cable System at an equitable price.
(D)
If a Cable System is abandoned by the Grantee, the ownership of all
portions of the Cable System in Public Rights-of-Way shall revert to
the City and the City may sell, assign, or Transfer all or part of the
assets of the System.
9.
MISCELLANEOUS PROVISIONS
(a) Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their
respective heirs, beneficiaries, administrators, executors, receivers, trustees, and the promises and
obligations herein shall survive the expiration date hereof.
(b) Severability
(1) If any provision of this Agreement or any application thereof to any person
or circumstance shall, to any extent, be held to be invalid or unenforceable (whether by federal or
state preemption or otherwise), this shall not affect other provisions or applications of this
Agreement which can be given effect without the invalid or unenforceable provision or application,
except that such invalidity or unenforceability may invoke the provision in Section 9(b)(2) for loss of
benefit, and to this end and extent the provisions of this Agreement are severable.
(2) If any provision of this Agreement should be held to be invalid or
unenforceable and results in a significant loss of benefit to the City or the Grantee or both, as
determined by either party, then the party clainùng such loss may demand renegotiation. Such a
demand for renegotiation must be delivered to the other party within one year after the date both
the City and the Grantee have received notice of the invalidity or unenforceability. Within fifteen
(15) days of receipt of such a demand, both the City and the Grantee must meet in the City of
Dubuque and begin renegotiations in good faith. The renegotiations shall be limited to reforming
the Agreement and restoring the party suffering the loss to its former position with equivalent
benefit, The reformed Agreement shall be effective from the date the invalidity or unenforceability
took place, and shall include any setdement for loss of past benefits necessary to restore the party
suffering the loss to its former position with equivalent benefit.
(3) The purpose of this Section 9(b) is to maintain the continuity of the contract
in conformity with the expressed intentions of the parties when the contract was formed and, where
applicable, as later amended.
9: MISCELLANEOUS PROVISIONS
(c) Grantee Bears Its Own Costs: Unless otherwise expressly provided in this Agreement, all
acts that the Grantee is required to perform must be performed at the Grantee's own expense.
(d) Force Majeure: The Grantee shall not be deemed in default of provisions of this
Agreement or the Cable Ordinance where performance was rendered impossible by war or riots,
labor strikes or civil disturbances, floods, or other causes beyond the Grantee's control, and the
Franchise shall not be revoked or the Grantee penalized for such noncompliance, provided that the
Grantee takes immediate and diligent steps to bring itself back into compliance and to comply as
soon as possible under the circumstances with the Franchise without unduly endangering the health,
safety, and integrity of the Grantee's employees or property, or the health, safety, and integrity of the
public, Public Rights-of-Way, public property, or private property.
(e) Governing LAw: This Franchise Agreement shall be governed in all respects by the law of
the State of Iowa.
(j) Notices: Unless otherwise expressly stated herein, notices required under this Franchise
Agreement shall be mailed Erst class, postage prepaid, to the addressees below. Each party may
change its designee by providing written notice to the other party, but each party may only designate
one entity to receive notice.
(1) Notices to the Grantee shall be mailed to:
[Name and Address]
(2) Notices to the City shall be mailed to:
[Name and Address]
(3) The Grantee shall at all times keep the City advised as to which individual(s) are
authorized to act on behalf of the Grantee and whose acts will be considered to bind the Grantee.
(gI Time of the Essence: Whenever this Agreement sets forth any time for any action to be
performed by or on behalf of the Grantee, such time shall be deemed to be of the essence, and any
failure of the Grantee to perform within the time allotted, unless otherwise agreed to by the City or
provided for herein, shall be suŒcient grounds for the City to revoke the franchise pursuant to the
procedures herein,
(h) Captions and &ferences
(1) The captions and headings of sections throughout this Agreement are intended
solely to facilitate reading and reference to the sections and provisions of this Agreement. Such
captions shall not affect the meaning or interpretation of this Agreement.
(2) When any provision of the Cable Ordinance is expressly mentioned herein, such
reference shall not be construed to limit the applicability of any other provision of the Cable
Ordinance or City law that may also govern the particular matter in question.
(i) Understanding and Consent: This Agreement is freely and voluntarily given by each of
the parties, without any duress or coercion, and after each party has consulted with its counsel.
Each party hereto has carefully and completely read all of the terms and provisions of this
Agreement, and acknowledges that, to the best of its knowledge, each provision is lawful and
9: MISCELLANEOUS PROVISIONS
enforceable, Ifthe Grantee believes that the terms of the franchise or any City law or regulation
conflicts with any state or federallaw or regulation, the Grantee shall notifY the City
immediately upon learning of the conflict.
AGREED TO THIS - DAY OF
,-'
City of Dubuque, Iowa,
a municipal corporation of Iowa
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
MCC IOWA, LLC,
a [state] [corporation/partnership]
By:
[title]
4253\OS'MI,FO2829.DOC
9: MISCELLANEOUS PROVISIONS
EXHIBIT A
ACCEPTANCE OF FRANCHISE BY THE GRANTEE
MCC IOWA, LLC ("Grantee") hereby accepts the franchise to constiuct, reconstruct,
operate and maintain a cable television system within the public rights-of-way in the City for the sole
purpose of providing cable service offered by Ordinance No. of City of Dubuque, Iowa
("City"), as amended ("Granting Ordinance"). By this acceptance, Grantee agrees that, as set forth
in the franchise and the Franchise Agreement, it shall be bound by the terms and conditions of the
Franchise Agreement, any amendinents thereto, [insert reference to Ordinance], and other
applicable law (collectively, the "Franchise Documents").
The Grantee declares that it has carefully read all of the terms and conditions of the
Franchise Documents, and accepts and agrees to abide by same,
Upon the Franchise becoming effective, the Grantee shall be immediately bound to maintain
and operate a Cable System under the terms, conditions and limitations set forth in the Franchise
Documents and other applicable law, as of the time and date it files this written acceptance with the
City.
AGREED TO THIS - DAY OF
MCC IOWA, LLC
By:
Its:
4253'O5\MLFO2829.DO('
9: MISCELLANEOUS PROVISIONS
STATE OF [STATE]:
, -, before me, the
County, [STATE],
of
and acknowledged
County, [STATE], to be the
I HEREBY CERTIFY, that on this - day of
subscriber, a Notary Public of the State of [STATE], in and for
aforesaid personally appeared
the foregoing Acceptance of Franchise by Grantee in
act and deed of said company.
County, [STATE]
AS WITNESS my hand and Notary Seal
Notary Public
My Commission Expires:
9: MISCELLANEOUS PROVISIONS
EXHIBIT B
I-NET SITE LIST
42S3\OS,Mf.FO2829.DOC