Ordinance 29-05CABLE RIGHT-OF-WAY ORDINANCE
CITY OF DUBUQUE, IOWA
2005
CABLE RIGHT-OF-WAY ORDINANCE
CITY OF DUBUQUE, IOWA
Page
TITLE I: GENERAL PROVISIONS 1
1. Legislative Findings 1
2. Purposes 2
3. Rules of Construction 2
4. Definitions 2
5. Authority 4
6. Reservation of Rights; Police Power 4
7. Title 4
8. Authorization Required 5
9. Construction Standards. 5
10. Placement of Facilities. 7
11. Relocation of Facilities. 8
12. Restoration. 8
13. Work Permits 9
14. Business License 9
15. Reimbursement of Costs 10
16. Administration 10
17. Audits 10
18. Reports and Records. 10
19. Bond or Letter of Credit 13
20. Insurance 13
21. Enforcement 13
22. Indemnification 15
23. Severability 16
TITLE II: CABLE COMMUNICATIONS 16
1. General Provisions 16
2. Grant of Franchise 21
3. Construction Standards 30
4. Use of Public Property 31
5. Interference with Public Projects 31
6. Consumer Protection 31
7. Rate Regulation 43
8. Franchise Fee 43
9. System Tests and Inspections 44
10. Insurance 46
11. Reports and Records - Cable 46
12. Performance Guarantees And Penalties 50
13. Transfers 52
14. Rights Of Individuals Protected 56
II
15. Miscellaneous Provisions 57
TITLE III: OPEN VIDEO SYSTEMS 58
1. Applicability of Ordinance. 58
2. Application for Open Video System Authorization. 58
3. Fee In Lieu of Franchise Fee. 59
4. Public, Educational, and Governmental Access Obligations 59
5. Right -of -Way Usage 59
EXHIBIT A Error! Bookmark not defined.
EXHIBIT B Error! Bookmark not defined.
III
TITLE I: GENERAL PROVISIONS
1: Legislative Findings
OFFICIAL PUBLICATION
ORDINANCE NO. 29-05
AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE
CITY OF DUBUQUE, IOWA, BY ADOPTING A NEW ORDINANCE 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:
CABLE RIGHT-OF-WAY ORDINANCE
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.
TITLE I: GENERAL PROVISIONS
2: Purposes
2. Purposes
The City Council adopts this ordinance to better—
(1) manage a limited resource to the long-term benefit of the public;
(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.
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TITLE I: GENERAL PROVISIONS
4: Definitions
(2) City. City of Dubuque, Iowa, and any agency, department, or agent
thereof.
(3) City Manager means the person appointed pursuant to City of
Dubuque Code of Ordinances § 2-105.
(4) Communications Facility or Communications System means
facilities for the provision of communications services, as that term is defined herein.
(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, subject to the terms and conditions specified in a
Franchise Agreement.
(10) Franchise Agreement means the 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 cable franchise
by the City or is an OVS operator in 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.
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TITLE I: GENERAL PROVISIONS
5: Authority
(14) Public Rights -of -Way 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.
(15) Telecommunications has the meaning ascribed to it in 47 U.S.C.
§ 153(43).
(16) Telecommunications Service has the meaning ascribed to it in 47
U.S.C. § 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.
5. Authorit
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
All rights and privileges granted in a franchise agreement 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 a grantee and the construction,
operation and maintenance of the grantee's cable system, including, but not limited to,
the right to adopt, amend, and enforce 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, permitting 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 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 a grantee's franchise agreement as prohibited by
Article I, Section 10, clause 1 of the U.S. Constitution.
7. Title
This Ordinance is known and may be cited as the "Dubuque Cable Right -of -Way
Ordinance."
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TITLE I: GENERAL PROVISIONS
8: Authorization Required
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 (e.g., in the case of a cable operator, a franchise)
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 construction,
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 the Iowa One -Call System, Iowa Code § 480.3 et. seq., 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 that standard, if followed,
would result in a 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, in a manner subject to the approval of the City Manager
or designee. Notwithstanding that grant of authority, if the Grantee performs the work, it
shall be fully liable for any damages caused thereby, and shall be responsible for replacing
damaged trees and shrubs. Grantee shall be responsible for notifying abutting property
owners prior to trimming trees and shall obtain permission from the City Manager or the
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TITLE I: GENERAL PROVISIONS
9: Construction Standards.
City Manager's designee. At the option of the City, such trimming may be done by the
City.
(6) Construction Schedule. Every owner or operator shall, at least 45
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, provide to the City 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 written approval, which shall
not be unreasonably denied or delayed, 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. At the time of such approval, the City shall inform the Grantee
whether the reports and other information described by Title I, section 18(3)(A) shall be
required with respect to the approved construction.
(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 City and 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 and insured 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.
(10) 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, other than emergency repair work, that will significantly disturb or disrupt
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TITLE I: GENERAL PROVISIONS
10: Placement of Facilities.
public property or have the potential to 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 fad 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, other
than to repair existing plant, in or on a public right-of-way in which both electric and
telephone service providers have placed their 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 like 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.
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TITLE I: GENERAL PROVISIONS
11: Relocation of Facilities.
(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 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 Grantee shall provide landscaping camouflage reasonably acceptable to the
property owner, at the Grantee's expense.
11. 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, or other structure, either on private property
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TITLE I: GENERAL PROVISIONS
13: Work Permits
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, weather permitting, 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.
(2) In the event an owner or operator of a facility fails 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, pursuant to the procedures for recovery from the
security fund specified in the owner or operator's franchise agreement.
(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.
13. 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, other than
routine repair or maintenance, 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. Notwithstanding the foregoing, under no provision in this
Ordinance shall any work permit or other approval from the City be required to install,
construct, repair, maintain or replace any service drop.
(2) A franchise 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.
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TITLE I: GENERAL PROVISIONS
15: Reimbursement of Costs
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 an application for an initial 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;
(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.
(1) Open Books and Records:
(A) The City shall have the right to inspect and analyze at any
time during normal business hours at the nearest office of an
owner or operator of facilities, or, if such office is not in the
City, then at such other location in the City as the City may
reasonably designate, all books, receipts, maps, records,
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TITLE I: GENERAL PROVISIONS
18: Reports and Records.
codes, programs, and disks or other storage media and
other like material reasonably appropriate in order to monitor
compliance with the terms of this Ordinance or applicable
law, where the owner or operator shall have the burden of
showing that such materials are not reasonably appropriate.
This includes not only the books and records directly
relevant to enforcement of this Ordinance or the owner or
operator's franchise agreement that are held by 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. The City shall provide the owner or operator with
advance notice stating the types of records sought to be
reviewed and the reason for such review.
(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 Open Records Act, Iowa Code Chapter 22, and other
applicable state and federal law.
(2) Annual Report:
Unless this requirement is waived in whole or in part in writing by
the City, no later than 120 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) 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.
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TITLE I: GENERAL PROVISIONS
18: Reports and Records.
(3)
(B) Detailed, updated maps depicting the location of all facilities
located in public rights-of-way 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) 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.
(B) 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.
(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
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TITLE I: GENERAL PROVISIONS
19: Bond or Letter of Credit
some other location, provided that (1) 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
franchise 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;
(B) For failure to render payments due under this Ordinance,
any applicable agreement or applicable law;
(C) For failure to file, obtain or maintain any required
performance bond or letter of credit in a timely fashion;
(D) For failure to restore damaged property.
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TITLE I: GENERAL PROVISIONS
21: Enforcement
(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 Title I,
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, a franchise 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 franchise
shall not so terminate if, within that one -hundred -twenty -day
period:
(i)
Such assignment, receivership or trusteeship has
been vacated; or
(ii) 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.
(iii) 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
franchise under this Ordinance shall automatically
terminate thirty (30) calendar days after such
foreclosure or sale, unless:
(a) The City has approved a transfer to the
successful bidder; and
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TITLE I: GENERAL PROVISIONS
22: Indemnification
(b) The successful bidder has covenanted and
agreed with the City to assume and be bound by the
terms and conditions binding its predecessor.
(iv) 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. If an
owner or operator whose franchise 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. In
exercising any remedy specified in this Ordinance, the City shall comply with any
substantive and procedural requirements for exercising such remedies in an owner or
operator's franchise agreement or other authorization.
(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
Any indemnity provided pursuant to a franchise agreement or other authorization shall
include, but not be 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 franchise under this Ordinance, limit the amounts owed to the
15
TITLE II: CABLE COMMUNICATIONS
23: Severability
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. The grant of a franchise
has the effect of giving the holder extensive economic benefits and placing the holder in
a position of public trust. 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:
(A) Cable should be available to as many City residents and
businesses as possible.
16
TITLE II: CABLE COMMUNICATIONS
1: General Provisions
(B) A cable system should be capable of accommodating both
present and reasonably foreseeable future cable -related
needs of the City.
(C) A cable system should be constructed and maintained
during a franchise term so that changes in technology may
be integrated to the maximum extent commercially
practicable into existing system facilities.
(D) 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.
(E) 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) Access Channel. Any channel on a cable system set aside
by a Grantee for public, educational, or governmental use.
(B) 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.
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TITLE II: CABLE COMMUNICATIONS
1: General Provisions
(C) Cable Act. The Cable Communications Policy Act of 1984,
47 U.S.C. §§ 521 et seq., as amended from time to time.
(D) 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.
(E) 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.
(F) Cable System 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 U.S.C. § 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.
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TITLE II: CABLE COMMUNICATIONS
1: General Provisions
(H) Educational Access Channel or Educational Channel. Any
channel on a cable system set aside by a Grantee for
educational use.
(1) Franchise Area. The area of the City that a Grantee is
authorized to serve by its franchise agreement.
(J) Governmental Access Channel or Governmental Channel.
Any channel on a cable system set aside by a Grantee for
government use.
(K) Installation. The connection of system services to
subscribers' television receivers or other subscriber -owned
or -provided terminal equipment.
(L) 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.
(M)
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.
(N) 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.
(0) 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.
(P) School. Any primary or secondary school or college
accredited by the State of Iowa, including without limitation
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TITLE II: CABLE COMMUNICATIONS
1: General Provisions
all accredited post -secondary institutions such as community
colleges, technical colleges and universities.
(Q) 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.
(R) 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.
(S) 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.
(T) Transfer.
"Transfer" shall mean any transaction in which: (A) there is any
change in control of the Grantee; or (B) the rights and/or obligations
held by the Grantee under the franchise are transferred, directly or
indirectly, to another party; or (C) any change or substitution occurs
in the managing general partners of the Grantee, where applicable.
Notwithstanding the foregoing, transfers or changes of control
between affiliates under common ownership or control shall not
constitute a "Transfer," provided that the ultimate parent of the
Grantee executes and delivers a guarantee of the Grantee's
performance under this Ordinance and its franchise agreement in
substantially the form attached hereto as Exhibit B.
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: (1) prevent the Grantee 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.
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TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
(I)
"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.
(ii) 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 (as measured by voting interests, not
number of shares) of an entity by any person or group
of persons acting in concert, none of whom already
own or control fifty percent (50%) or more of such
right or control, singularly or collectively.
(iii) 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.
(U) 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.
2. Grant of Franchise
(1) Grant.
(A) 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.
(B) 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.
(C) No person may construct or operate a cable system in the
City without a franchise granted by the City. No person may
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TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
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) 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 U.S.C. § 541(a)(2)), or to use publicly or privately
owned conduits without a separate agreement with the
owners.
(B) 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.
(C) A franchise is non-exclusive and will not explicitly or implicitly
preclude the issuance of other franchises to operate cable
systems 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, subject
to applicable state and federal law.
(D) All privileges prescribed by a franchise shall be subordinate
to (without limitation) the City's use of the public rights-of-
way for purposes that do not directly or indirectly compete
with the Grantee and to any prior lawful occupancy of the
public rights-of-way.
(E) No reference herein, or in any franchise agreement, to
"public rights-of-way" shall be deemed to be a representation
or guarantee by the City that its interest or other right to
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TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
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) 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
U.S.C. § 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.
(B) 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.
(C) 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.
(D) The City may, from time to time, issue such reasonable rules
and regulations concerning cable systems as are consistent
with applicable law and Title I, Section 6.
(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.
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TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
(i) A written application shall be filed with the City for
grant of an initial franchise or modification of a
franchise agreement pursuant to 47 U.S.C. § 545.
(ii) 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.
(iii) All applications accepted for filing shall be made
available by the City for public inspection.
(B) Application for Grant of an Initial Franchise.
(i)
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.
(ii) An applicant shall respond to a RFP by filing an
application within the time directed by the City,
delivering a copy to each existing Grantee and
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 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
24
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
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 the application satisfies any
requirements under applicable state or federal law
governing the issuance of additional franchises;
(f) 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;
(g) 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
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TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
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;
(h) What effects a grant of the application may
have on competition in the delivery of cable service in
the City.
(iv) 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; however, an
existing Grantee shall be an deemed an interested
party for purposes of Section 2(10) of this Title.
(C) 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:
(i)
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
26
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
any other business affiliation and cable system
ownership interest of each named person.
(ii) A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system,
including identification of key personnel.
(iii) 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:
(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.
(iv) A demonstration of the applicant's financial ability to
complete the construction and operation of the cable
system proposed.
(v) 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.
(vi) 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. In no
event, however, shall the mandatory area of universal
service required be less that of any existing Grantee.
(vii) 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
27
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
mileage and its location; the proposed construction
schedule; a description, where appropriate, of how
services will be 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.
(x) 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.
(xi) 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.
(xii) 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.
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TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
(D) 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).
(E) 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.
(7) Application for Grant of a Renewal Franchise. The renewal of any
franchise to provide cable service shall be conducted in a manner consistent with
applicable federal law.
(8) 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;
(B) 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 alfa, submission of financial pro formas;
(C) A statement whether the modification is sought pursuant to
Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a
demonstration that the requested modification meets the
standards set forth in 47 U.S.C. § 545;
(D) Any other information that the applicant believes is
necessary for the City to make an informed determination on
the application for modification; and
(E) 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 is
consistent with all federal and state law requirements.
(9) 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
29
TITLE II: CABLE COMMUNICATIONS
3: Construction Standards
examined and the public and all interested parties afforded a reasonable opportunity to
be heard.
(10) 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
Structures, 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, construction, maintenance, or repair 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
that standard, if followed, would result in a system that could not meet requirements 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, other than
subscriber drop lines and single dwelling unit or other similar interface devices attached
to customer structures, 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 install such equipment, and shall
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4: Use of Public Property
make reasonable efforts to confer with such homeowners before any work is done, if the
homeowner contacts the Grantee on a timely basis before work begins.
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.
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, consistent with the requirements of this Ordinance and the franchise
agreement.
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)
the City and a Grantee from agreeing to customer
service requirements that exceed the standards set
forth in this ordinance;
(ii) the City from enforcing, through the end of a franchise
term, pre-existing customer service requirements that
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6: Consumer Protection
exceed the standards set forth in this Ordinance and
are contained in current franchise agreements;
(iii) the City from enacting or enforcing any customer
service or consumer protection laws or regulations; or
(iv) 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;
(v) 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 or preempt, the Grantee shall not
assess a subscriber any 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.
(B) 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.
(C) 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
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6: Consumer Protection
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.
(D) Time for Extension. Where a Grantee is required under this
Section 6(3)(A) to provide service to a person, it must
provide such service (i) within 30 days of the person's
request if such person resides no further than one hundred
fifty (150) 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.
(E) Deposits. A Grantee may require a reasonable 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.
(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.
(4) Telephone and Office Availability.
(A) 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.
(B) 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
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6: Consumer Protection
representatives of a Grantee shall be available to respond to
subscriber telephone inquiries during normal business hours.
(C) 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.
(D) A Grantee must hire sufficient staff (which may include
contract labor) so that it can respond to customer inquiries,
complaints, and requests for service in its office, over the
phone, and at the subscriber's residence as required by this
Ordinance.
(5) Scheduling and Completing Service
(A) 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
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
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 within 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.
(B) Each Grantee shall perform service calls, installations, and
disconnects at least during normal business hours. In
addition, 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.
(C) Emergency Maintenance. A Grantee shall keep an
emergency system maintenance and repair staff, capable of
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
responding to and repairing system malfunctions or
interruptions, on a twenty-four (24) hour basis.
(D) 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.
(E) 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.
(F) 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.
(G) Mobility -Limited Subscribers. With regard to mobility -limited
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.
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6: Consumer Protection
(A) 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)
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;
(ii) 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;
(iii) instructions on how to use the cable service;
(iv) instructions for placing a service call;
(v) 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;
(vi) a copy of the service contract, if any;
(vii) notice regarding subscribers' privacy rights pursuant
to 47 U.S.C. § 551;
(viii) 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).
(B) 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, or
procedures for responding to inquiries after normal business
hours. At least five working days before the subscriber
notice, unless waived by the City, the Grantee shall provide
to the City the specific points to be contained in a subscriber
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6: Consumer Protection
notice and the text of the subscriber notice, if available. If
the text is not available, it shall be provided to the City as
soon as it is available.
(C) 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.
(D) Each Grantee shall maintain a public file containing all
notices provided to subscribers under these customer
service standards. Copies of all such notices sent to
subscribers, and of any agreements used with subscribers,
shall be filed promptly with the City.
(8) Subscriber Agreements
(A) The form of any installation or service agreement which a
Grantee proposes to use or has used with a subscriber shall
be subject to the approval of the City in order to ensure
protection of legitimate consumer interests. Any type of
agreement used by a Grantee and not approved by the City
shall be void ab initio. When such an agreement is
submitted for approval, the City shall provide its response
within two weeks after the date of submission.
(B) Two (2) copies of all other types of agreements with
subscribers used by a Grantee shall be filed and maintained,
one (1) copy with the City Clerk and one (1) copy with the
City Manager or the City Manager's designee.
(C) No agreement with a subscriber shall contain false or
misleading information.
(9) Billing.
(A) Bills shall be clear, concise, and understandable. Bills must
be fully itemized with itemizations including, but not limited
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
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. Amounts itemized on bills pursuant to 47 U.S.C.
§ 542(c) shall not be identified as separate costs over and
above the amount the franchisee charges a subscriber for
cable service, but shall be shown in such a way as to make
clear to the subscriber that these amounts are part of the
total amount a Grantee charges a cable subscriber for cable
service, as set forth in the example in H.R. Rep. No. 628,
102d Cong., 2d Sess., at 86 (1992).
(B) 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.
(C) Credits for service shall be issued no later than the
subscriber's next billing cycle following the determination
that a credit is warranted.
(D) A Grantee's first billing statement after a new installation or
service change shall be prorated as appropriate and shall
reflect any security deposit.
(E) A Grantee's billing statement must show a specific payment
due date not earlier than the tenth day of the period for
which the service being billed is rendered. Any balance not
received by the end of the period for which the service is
being billed ("Current Month") may be assessed a late fee
not exceeding five dollars ($5.00) in 2005 dollars, adjusted for
inflation according to CPI -U All Urban Consumers U.S. City
Average All Items, 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 billing statement for the month
after the Current Month ("Subsequent Month"). If a late fee
is shown on the Subsequent Month's billing statement and
such late fee amount is paid before the end of the Current
Month, then the Grantee shall reverse such late fee and
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
credit such subscriber's account for the amount of such late
fee.
(F) 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.
(G) 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.
(H) 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 (i) it can be documented that
a subscriber seeks a refund for an outage or impairment
which that subscriber caused, or (ii) in the case of a planned
outage of two hours or less occurring between the hours of
12:00 midnight and 6:00 a.m. of which the subscriber had
prior notice, or (iii) if the interruption is necessary to perform
tests required by applicable law.
(1)
A Grantee shall respond to all written billing complaints from
subscribers within thirty (30) days.
(10) Disconnection/Downgrades.
(A) A subscriber may terminate service at any time unless the
subscriber has voluntarily entered into a contract for service
for a term of longer than one month, in which case the
contract terms shall govern.
(B) A Grantee shall promptly disconnect or downgrade any
subscriber upon request. 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
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
imposed by any Grantee for any cable service delivered after
the date of the disconnect request.
(C) 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).
(D) 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
reinstate service.
(E) 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 ceased 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.
(F) 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
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
notify the subscriber of the problem and, once the problem is
corrected, reconnect the subscriber.
(G) If a Grantee fails to remove its subscriber terminal
equipment from a subscriber's premises within one hundred
twenty (120) 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.
(H) A Grantee shall reconnect service to customers wishing
restoration of service, provided such a customer shall first
satisfy any previous obligations owed.
(11) 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.
(12) 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.
(13) Enforcement
(A) A Grantee shall keep such records as are necessary to show
compliance with these customer service standards and FCC
customer service standards.
(B) 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.
(C) If a Grantee in non-compliance with any standard during any
calendar quarter, it shall include in its annual filing a
statement specifying areas of non-compliance, the reason
for the non-compliance and a remedial plan.
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7: Rate Regulation
(D) An officer or employee of a Grantee who knowingly and
intentionally signs a compliance certificate or noncompliance
statement knowing that such statement is materially false
shall be guilty of a misdemeanor.
(E) 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.
(F) 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.
(G) Violation of the consumer protection obligations referred to in
this Section 6 shall be a municipal infraction as defined in
Section 1-15 of the City of Dubuque Code of Ordinances and
shall be punishable as provided therein.
(14) Exclusive Contracts and Anticompetitive Acts Prohibited.
(A) No Grantee shall enter into an exclusive agreement to serve
a subscriber, person or location unless the Grantee has also
offered cable service under terms not requiring an exclusive
contract.
(B) 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 are expressly authorized by federal or state
law.
7. Rate Regulation
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.
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9: System Tests and Inspections
(A) Each Grantee shall pay a franchise fee in an amount
determined in the franchise agreement.
(B) In the event that any franchise fee payment or any
recomputation amount is not paid by the due date, then
interest shall accrue 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.C. § 6621).
(C) 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) 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.
(B) 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
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TITLE II: CABLE COMMUNICATIONS
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.
(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 are 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) If the City notifies a Grantee that the City wishes to observe the
next proof of performance test, then the Grantee shall provide the City with at least two
business days' notice of the test, and an opportunity to observe it. 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
45
TITLE II: CABLE COMMUNICATIONS
10: Insurance
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) A 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 A, as such schedule
may from time to time be amended by the City. The Insurance Schedule attached as
Exhibit A is the City's current schedule.
(A) All contractual liability 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 Federal Communications
46
TITLE II: CABLE COMMUNICATIONS
11: Reports and Records — Cable
Commission by the Grantee or its Affiliates that relate
specifically to the Cable System or are reasonably likely to
affect the Grantee's operations in the City. Such reports and
materials shall include, but are not limited to, proof of
performance tests and results 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 City no later than the next business
day after they are submitted to the receiving agency.
Materials received by the Grantee shall be filed 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 filed with
the City within five (5) days of the date they are received by
the Grantee.
(C) 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 120 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) 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 amount
collected annually from Users of the System and the
character and extent of the services rendered to any Users
from whom amounts are collected, including Leased Access
Channel Users, provided that if the City directly or indirectly
compete with a Grantee in providing communications
services, it shall provide such Grantee with the number of
subscribers gained or lost for each category of service by the
City during the City's fiscal year;
(B) a summary of complaints, identifying both the number and
nature of the complaints received and an explanation of their
47
TITLE II: CABLE COMMUNICATIONS
11: Reports and Records — Cable
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;
(C) 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;
(D) 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.
(E) a copy of any rules and regulations of the Grantee applicable
to subscribers of the cable system, and of any contracts for
Cable Service initiated with current subscribers during the
year;
(F) an annual statement of Gross Revenues derived from the
operation of the Cable System, certified by an officer of the
Grantee;
(G) a full schedule of all Subscriber and other user rates, fees
and charges;
(H) the Grantee's policies regarding Subscriber privacy;
(1) such other information as the City may direct that is relevant
to compliance with the Grantee's franchise agreement, this
Ordinance and other applicable law.
(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
48
TITLE II: CABLE COMMUNICATIONS
11: Reports and Records — Cable
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) Records of all complaints received. The term "complaints"
as used herein and throughout this Agreement refers to
written complaints or complaints documented in the
Grantee's normal course of business 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.
(B) Records of outages, indicating date, duration, area, number
of Subscribers affected, type of outage, and cause.
(C) Records of service calls for repair and maintenance,
indicating the date and time service was requested, the date
and time service was provided, and (if different) the date and
time the problem was resolved.
(D) Records of installation/reconnection and written requests for
service extension, indicating date of request, date of
acknowledgment, and the date and time service was
extended.
(7) Retention of Records; Relation 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 U.S.C. § 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.
49
TITLE II: CABLE COMMUNICATIONS
12: Performance Guarantees And Penalties
(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
(A) 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 et seq., at the City's
discretion:
(i) For failure to substantially complete construction in
accordance with the franchise agreement;
(ii) For transferring the franchise without approval;
(iii) For failure to comply with requirements for public,
educational, and governmental use of the system;
(iv) For violation of customer service standards;
(v) For failure, unless such failure is beyond the
Grantee's control, of the system to perform in the
event of a public emergency;
(vi) For violation of technical standards established by the
FCC;
(vii) For violation of federal, state, or local privacy
requirements;
(viii) For any other violations of this Ordinance, a franchise
agreement, or other applicable law.
(B) The following procedure shall apply, in place of the amount
specified in Section 12(1)(A)(iv) above, for violation of
customer service standards, in assessing liquidated
damages for customer service standards that are measured
on a quarterly basis:
50
TITLE II: CABLE COMMUNICATIONS
12: Performance Guarantees And Penalties
(I)
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 $1,500.
(ii) For a second consecutive noncompliant quarter, the
Grantee shall be subject to penalties in the amount of
$2,000.
(iii) For each consecutive noncompliant quarter beyond
the second, the Grantee shall be subject to penalties
in the amount of $4,000.
(C) The Grantee shall pay any penalty assessed in accordance
with this Ordinance within thirty days after receipt of notice
from the City.
(D) 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.
(E) The City may reduce or waive any of the above -listed
penalties for good cause shown.
(F) 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
(3) Relation to Insurance and Indemnity Requirements. Recovery by
the City of any amounts under insurance, the security fund, the performance bond, or
letter 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
51
TITLE II: CABLE COMMUNICATIONS
13: Transfers
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) 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.
(B) 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 Grantee 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.
(2) Application.
(A) A Grantee shall promptly notify the City of any proposed
transfer.
(B) 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) all information and forms required under federal law;
52
TITLE II: CABLE COMMUNICATIONS
13: Transfers
(ii) all information required in Sections 2(6)(C)(i)-(v) of
this Ordinance;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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 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
53
TITLE II: CABLE COMMUNICATIONS
13: Transfers
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;
(ix) any other information necessary to provide a
complete and accurate understanding of the financial
position of the System before and after the proposed
Transfer;
(x) complete information regarding any potential impact
of the Transfer on subscriber rates and service;
(xi) any representations made to anyone, in connection
with the transaction, about the Grantee's compliance
with its Franchise; and
(xii) 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.
(C) 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.
(D) 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.
(E) 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
54
TITLE II: CABLE COMMUNICATIONS
13: Transfers
may be redacted, excluded, or reviewed through special
arrangements. It shall be the 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) 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.
(B) Any transfer without the City's prior written approval 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.
(C) A Grantee shall be fully liable for any transfer that is in
violation of the terms of its franchise agreement or this
55
TITLE II: CABLE COMMUNICATIONS
14: Rights Of Individuals Protected
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 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) 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.
(B) 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.
(C) 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.
(D) 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
56
TITLE II: CABLE COMMUNICATIONS
15: Miscellaneous Provisions
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.
(E) A Grantee may impose different financial terms and
conditions on different subscribers based on rational
classifications (for example, the subscriber's credit history),
provided that such imposition does not violate applicable
state or federal law.
(2) Subscriber Privacy.
(A) 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 U.S.C.
§ 551.
(B) 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 Grantee.
(C) 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
57
TITLE III: OPEN VIDEO SYSTEMS
1: Applicability of Ordinance.
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. Applicability of Ordinance.
(1) In addition to this Title III, Titles I and II of this Ordinance shall apply
to open video systems that comply with 47 U.S.C. § 573, to the extent permitted by
applicable law, except that the following sections of Title II 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 -01) (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.
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) 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.
(B) A detailed description of the physical facilities the applicant
proposes to place in public ways.
58
TITLE III: OPEN VIDEO SYSTEMS
3: Fee In Lieu of Franchise Fee.
(C) Any information that may be reasonably necessary to
demonstrate compliance with the requirements of federal law
and with this Ordinance.
(D) 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) An OVS applicant shall reimburse the City for its costs pursuant to
Title I, Section 15 of this Ordinance.
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 II, 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.
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.C. § 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, approved and adopted this 2nd day of May, 2005.
Terrance M. Duggan, Mayor
59
TITLE III: OPEN VIDEO SYSTEMS
5: Right -of -Way Usage.
Attest:
Jeanne F. Schneider, CMC
City Clerk
APPROVED AS TO FORM: REVIEWED BY:
Barry A. Lindahl, Michael C. Van Milligen,
Corporation Counsel City Manager
Published officially in the Telegraph Herald the day of May, 2005.
Jeanne F. Schneider, CMC
City Clerk
60