Ordinance 00-017
Chapter 6 TELECOMMUNICATIONS*
Art. I. In General, §§ 6-1--6-3
Art. II. Grant of Franchise, §§ 6-4--6-25
Art. III. Regulation of Franchise, §§ 6-26--6-29
Art. IV. Bonds, Insurance and Indemnification, §§ 6-30--6-32
Art. V. Design and Construction Provisions, §§ 6-33--6-40
Art. VI. Service Provisions, §§ 6-41--6-46
Art. VII. Books, Records and Reports, §§ 6-47--6-49
Art. VIII. Miscellaneous Provisions, §§ 6-50--6-53
ARTICLE I. IN GENERAL
Sec. 6-1. Purpose.
The Town of Cary finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the people of Cary. Because of the complex and rapidly changing technology associated with cable television, the town further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the town or such persons as the town shall designate. It is the intent of this chapter and subsequent amendments made pursuant to this document to provide
for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.
Further, it is recognized that cable communications systems have the capacity to provide not only entertainment and information services to the town's residents, but can provide a variety of broadband, interactive communications services to institutions and individuals. Many of these services involve town agencies and other public institutions, by providing governmental, educational or health care communications.
For these purposes, the following goals underlie the regulations contained herein:
(1) Communications services should be provided to the maximum number of town residents.
(2) The system should be capable of accommodating both the present and reasonably foreseeable future communications needs of the Town.
(3) The system should be improved and upgraded during the franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities.
(4) The communications systems authorized by this chapter shall be responsive to the needs and interests of the local community, and shall provide the widest possible diversity of information sources and services to the public.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-2. Title of chapter.
This chapter shall be known and may be cited as "Cary Telecommunications Ordinance," and it shall become a part of the Ordinances of the Town.
This chapter shall take effect and be in force from and after its passage and publication.
That all ordinances or parts of ordinances in conflict with the provisions of this chapter are hereby repealed.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-3. Definitions.
For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
BASIC SUBSCRIBER tier services means the lowest priced service tier, including the delivery of broadcast signals and public, educational and government access channels covered by the regular monthly charge. Basic service may be further defined in the franchise to include specific services or types of services to be provided by the franchisee.
CABLE COMMUNICATIONS SYSTEM, also referred to as "system," means a system of antennas, cables,amplifiers, towers, microwave links, cablecasting studios, and any other conductors, converters, equipment or facilities, designed and constructed for the purpose of distributing video programming to home subscribers and/or producing, receiving, amplifying, storing, processing, or distributing audio, video, digital or other forms of electronic or electrical signals sold or distributed to subscribers. Such definitions shall not include any similar facility that serves only the residents of one or more apartment or multifamily dwellings or condominiums under common ownership, control or management, nor other closed circuit systems for industrial, commercial, or similar use to which the general public may not subscribe, so long as the public streets or rights of way are not utilized in the provision of such service or interconnection of such facilities.
CABLECAST SIGNAL means a nonbroadcast signal that originates within the facilities of the cable communications system.
CHANNEL means a six-Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. One channel of High Definition Television will utilize more than six (6) MHz.
CLOSED-CIRCUIT OR INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutionals to residential subscribers.
COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession.
COMMUNICATIONS POLICY ACT OR CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded.
CONVERTEr means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control.
COUNCIL means the council of the Town of Cary.
CPI shall mean the national percentum increase for the most recently completed calendar year of the Average Consumer Price Index for all items as published by the Bureau of Labor Statistics of the United States Department of Labor, subject to maximum limits as may be set forth within the franchise agreement.
DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations that may be qualified by the council.
DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel.
DOWNSTREAM SIGNAL means a signal originating from or provided by a cable television system to a subscriber terminal or other terminal including video, audio, or digital signals or any other type of data or information for either programs or other uses such as security alert services, etc.
DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal.
EDUCATIONAL ACCESS CHANNEL means any channel designated for educational access use.
FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time.
FCC means the Federal Communications Commission and any legally appointed successor.
FRANCHISE means the nonexclusive rights granted pursuant to this chapter to construct, operate and maintain a cable communications system along the public ways within all or a specified area in the town. Any such authorization, in whatever form granted, shall not mean or include any license or permit or other nondiscriminatory charge required for the privilege of transacting and carrying on a business within the town as required by other ordinances and laws of the town.
FRANCHISE AREA means the entire town, or portions thereof, for which a franchise is granted under the authority of this chapter or the franchise. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the town, including all territory thereafter annexed to the town.
FRANCHISE FEE means the percentage, as specified by the town, of the franchisee's gross revenues in exchange for the rights granted pursuant to this chapter and the franchise.
GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government access use.
GRANTEE OR FRANCHISEE means the natural person(s), partnership(s), domestic and foreign corporation(s), association(s), joint venture(s), or organization(s) of any kind which has been legally granted a franchise by the town, and its lawful successor, transferee or assignee.
GRANTOR means the Town of Cary as represented by the town council acting within the scope of its jurisdiction.
GROSS ANNUAL REVENUES OR GROSS REVENUES means all revenue received directly or indirectly from the operation of the cable communications system in the town by the grantee, its affiliates, subsidiaries, and any person in which the grantee has a financial interest.
INSTALLATION shall mean the connection of the system from feeder cable to subscribers' terminals.
LEASED ACCESS CHANNEL, OR COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the grantee, at rates which are fair and reasonable.
MONITORING means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever.
NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers.
OPERATOR shall mean the entity granted a Franchise.
ORIGINATION SITE means a location capable of transmitting audio-video television signals to the Operator's headend or other location as provided.
OVS shall refer to Open Video System as defined by the Federal Communications Commission.
PERSON means an individual, partnership, association, organization, corporation or any other legal entity including any lawful successor transferee of said individual, or entity.
PLANT MILE means a linear mile of strand-bearing cable as measured on the street or easement from pole to pole or pedestal to pedestal. In cases where cable is on both sides of the street, only the cable on one side of the street will be utilized in measuring a plant mile.
PUBLIC ACCESS CHANNEL means any channel designated or dedicated for use by the general public or noncommercial organizations which is made available for access use without charge on a first-come, first-served, nondiscriminatory basis.
PUBLIC WAY OR PUBLIC RIGHTS-OF-WAY means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public right-of-way, including state and private streets, or hereafter held by the town which shall entitle the town and the company to the use thereof for the purpose of installing and maintaining the company cable television system. No reference herein, or in any franchise, to the "public way" shall be deemed to be a representation or guarantee by the town that its title to any property is sufficient to permit its use for such purpose, and the grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the town as the town may have the undisputed right and power to give.
REASONABLE NOTICE shall be written notice addressed to the grantee at its principal office within the town or such other office as the grantee has designated to the town as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than seven (7) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said seven (7) business days, town holidays shall be excluded.
RESIDENT means any person residing in the town as otherwise defined by applicable law.
RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession.
SALE shall include any sale, exchange or barter.
SCHOOL means any public or non-profit educational institution including primary and secondary schools, colleges and universities.
STATE means the State of North Carolina.
STATE-OF-THE-ART means that technology, configuration and services provided at the time of review in comparable franchise area.
SYSTEM FACILITIES OR FACILITIES means the cable communications system constructed for use within the town, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the town designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from subscribers, in the town and any other equipment or facilities located within the corporate limits of the town intended for the use of the system; provided, however, such system facility excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other system facilities located outside the town limits.
TOWN means the Town of Cary, North Carolina.
TRANSFER means the disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of fifteen (15) per cent or more at one time of the ownership or controlling interest in the system, Or Twenty Percent (20%) cumulatively over the term of the franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert.
TRUNK LINE means the major distribution cable used in cable communications.
TWO-WAY or INTERACTIVE means the capability of both sending and receiving audio-video or other electronic signals from the same location. It refers to the capability of using the upstream and downstream portions of the subscriber network.
UPSTREAM SIGNAL means a signal originating from a terminal to another point in the cable television system including video, audio or digital signals for either programs or other uses such as local origination, etc.
USER means person or organization utilizing channel or equipment and facilities for purposes of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE II. GRANT OF FRANCHISE
Sec. 6-4. Grant.
(a) In the event that town shall grant to grantees a nonexclusive, revocable franchise to construct, operate, and maintain a cable communications system within the town, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as regulated by the provisions of this chapter and the franchise. The franchise shall include by reference those provisions of the grantee's "application for franchise" that are finally negotiated and accepted by the town and grantee.
(b) The franchise shall be granted under the terms and conditions contained herein, consistent with the town's Charter, Code of Ordinances, and/or other applicable statutory requirements. In the event of conflict between the terms and conditions of this chapter, the franchise, or the terms and conditions on which the town can grant a franchise, chapter shall control.
(c) Any franchise granted by the town is hereby made subject to the Code of Ordinances of the Town of Cary amended from time to time. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the town regarding permits, fees to be paid, or manner of construction.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-5. Franchise area.
(a) The franchise area shall be the entire town, or portions thereof, for which a franchise is granted.
(b) The town has the right, as granted by the Wake County Board of County Commissioners, to regulate the Wake County franchise in areas surrounding the town or as otherwise specified by the Wake County Board of County Commissioners.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-6. Use of public right-of-way.
For the purpose of operating and maintaining a cable communications system in the town, the grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and within the rights-of-way within the Town such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable communications system, provided, however, that grantee complies with all design, construction and safety provisions contained in this chapter, the franchise, and other applicable state and local ordinances.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-7. Use of town facilities.
At the town's option, the town may require a grantee to utilize town-owned conduit or other facilities for any portion of its cable communications system. The consideration for the use of town conduit or other facilities shall be a reasonable fee to be negotiated prior to use of town facilities and may be adjusted periodically.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-8. Use of grantee facilities.
No poles shall be erected by the grantee without prior approval of the town and as permitted by town ordinances and regulations. However, no location of any pole of the grantee shall be a vested right and such poles shall be removed or modified by the grantee at its own expense whenever the town determines that the public convenience would be enhanced thereby. The grantee shall utilize existing poles and conduits, where possible. The town shall have the right, during the life of the franchise, to install and maintain free of charge upon the poles owned by the grantee, any wire
and pole fixtures that are noninterfering and noncompetitive with the cable system operations of the grantee. The town's right to use grantee facilities is not transferable.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-9. Franchise required.
No cable communications system shall be allowed to occupy or use the streets of the town or be allowed to operate without a franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-10. Term of franchise.
The term of any franchise granted pursuant to this chapter shall be stated in the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-11. Franchise nonexclusive.
The franchises discussed herein are nonexclusive. The town specifically reserves the right to grant at any time such additional franchises for a cable communications system as it deems appropriate. To the extent allowable by law, any cable communications franchises granted by the town may contain similar terms and conditions.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-12. Time is of the essence.
Whenever the franchise agreement shall set forth any time for an act to be performed by or on behalf of the grantee, such time shall be deemed of the essence and any failure of the grantee to materially perform within the time allotted shall be sufficient ground for the city to invoke an appropriate penalty including possible revocation of the franchise, subject to notice and a time to cure.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-13. Law governs.
In any controversy or dispute under this chapter, the law of the state or federal law, as appropriate, shall apply.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-14. Severability.
If any section, subsection, sentence, clause, phrase or portion of this chapter or the franchise is for any reason held invalid or unconstitutional by any court of competent jurisdiction, or by any federal, state, or local statute or regulation, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-15. Transfer of ownership or control.
(a) Transfer of franchise. Any franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the town.
(b) The grantee shall promptly notify the town of any actual or proposed change in, or transfer of, acquisition by any other party of, control of the grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, often fifteen (15) per cent or more at one time of the ownership or controlling interest in the system, or twenty (20) per cent cumulatively over the term of the franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert.
(c) Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the town shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the town may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the grantee shall assist the town in any such inquiry. Failure to provide all information reasonably requested by the town as part of said inquiry and evaluation shall be grounds for denial of the proposed change, transfer or acquisition of control.
(d) Assumption of control. The town agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the town that it or its designees satisfactory to the town will take control and operate the cable television system. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the town at its discretion and during said period of time it shall have the right to petition for transfer of the franchise to another grantee. If the town finds that such transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant are satisfactory, the town will transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the town to such transfer shall not be unreasonably withheld.
(e) The consent or approval of the town to any transfer of the grantee shall not constitute a waiver or release of the rights of the town in and to the streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this chapter and the franchise.
(f) The town will approve any transfer or assignment of the franchise prior to completion of construction of the proposed system, if guarantees for timely and quality construction are provided by the transferee, as may be reasonably requested by the town.
(g) The town reserves the right to review
the purchase price of any transfer or assignment of the cable
system. Any assignee to this chapter or the franchise expressly
agrees that any negotiated sale value which the town deems
unreasonable will not be considered in the rate base for any
subsequent request for rate increases, if applicable.
(h) Any approval by the town of transfer of ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the franchise. In cases of change in control, the town may waive this requirement.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-16. Franchise renewal.
Renewal discretionary. Upon completion of the term of any franchise granted under this chapter, the town may grant or deny renewal of the franchise of the grantee in accordance with the provisions of the Cable Act. The grantee shall own the cable communication system, but shall have no property right in the public rights-of-way upon the completion of the franchise term.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-17. Police powers.
(a) In accepting the franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the town (as provided in GS 116A-174) to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the town pursuant to such power.
(b) Any conflict between the provisions of this chapter or the franchise and any other present or future lawful exercise of the town's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to grantee or cable communications systems which contains provisions inconsistent with this chapter shall prevail only if, upon such exercise, the town finds an emergency exists constituting a danger to health, safety, property or general welfare and such exercise is mandated by law.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-18. Franchise fees.
(a) Because the town finds that:
(1) The streets of the state and town to be used by the grantee in the operation of its system within the boundaries of the franchise area are valuable public properties acquired and maintained by the state and town at great expense to its taxpayers; and
(2) The grant to the grantee to the said streets is a valuable property right without which the grantee would be required to invest substantial capital in right-of-way costs and acquisitions; and
(3) The administration of this chapter or the franchise imposes upon the town additional regulatory responsibility and expense, a grantee of any franchise hereunder shall pay to the town a franchise fee of five (5) per cent of gross annual revenues. This annual franchise payment shall be in addition to any other fee and commence as of the effective date of the franchise. The town shall be furnished a statement of said payment by a certified public accountant, reflecting the total amounts of annual gross revenues and the above charges and computations for the period of July 1 to June 30 as provided in section 6-48(9).
(b) This payment shall be in addition to any other lawful tax or payment owed to the governments or other taxing jurisdiction by the grantee. Payment of the franchise fee made by grantee to the town shall not be considered in the nature of a tax, but shall be in addition to any and all taxes which are now or may be required hereafter to be paid by any federal, state, or local law.
(c) Acceptance by the town. No acceptance of any payment by the town shall be construed as a release or as an accord and satisfaction of any claim the town may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.
(d) Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate of the town's primary depository bank during the period that such unpaid amount is owed.
(e) The franchise fee shall be payable quarterly to the Town of Cary. The grantee shall file a complete and accurate statement, certified by an officer of the grantee, of all gross revenue within the town during the period for which said quarterly payment is made, and said statement and payment shall be made to the town not later than forty-five (45) days after the expiration of each calendar quarter. Quarterly computation dates are the last day in the months of March, June, September and December.
(f) The town shall have the right to inspect the grantee's books and records pertinent to the computation of the franchise fee and the right to audit and to recompute any amounts determined to be payable under this chapter. Audits shall be conducted by an independent auditor chosen by the town. If, after audit and recomputation, an unpaid fee is owed to the town, it shall be paid within thirty (30) days following written notice of the grantee by the town which notice shall include a copy of the audit report and the grantee shall pay the costs of the audit, unless grantee shall in good
faith dispute such additional amounts claimed by the town.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-19. Forfeiture or revocation.
(a) Grounds for revocation. The town reserves the right, subject to the provisions of subsection (b) and (d) of this section 6-19, to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this chapter and the franchise grant:
(1) If the grantee shall default in the performance of any of the material obligations under this chapter or the franchise.
(2) If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein.
(3) If the grantee shall violate any orders or rulings of any regulatory body having jurisdiction over the grantee relative to this chapter or the franchise which results in a default of any of the material obligations under this chapter or the franchise.
(4) If the grantee practices any fraud upon the town or pattern of fraud on cable subscribers.
(5) The grantee's construction schedule is delayed later than the schedule contained in the franchise or beyond any extended date set by the town or is not remedied through liquidated damages.
(6) The grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.
(7) Failure to restore system-wide or area specific service after ninety-six (96) consecutive hours of interrupted service, except when approval of such interruption is obtained from the town or if the grantee ceases to operate and provide services for any reason within the control of the grantee.
(8) Material misrepresentation of fact in the application for or negotiation of the franchise or any extension or renewal thereof.
(b) Effect of circumstances beyond control of grantee. The grantee shall not be declared at fault or be subject to any sanction under any provision of this chapter in any case, in which performance of any such provision is prevented for reasons beyond the grantee's control. A fault shall not be deemed to be beyond the grantee's control if committed by a corporation or other business entity in which the grantee holds a controlling interest whether held directly or indirectly.
(c) [Pending litigation.] Pending litigation or any appeal to any regulatory body or court having jurisdiction over the grantee shall not excuse the grantee from the performance of its obligations under this chapter or the franchise. Failure of the grantee to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section.
(d) Procedure prior to revocation.
(1) The town shall make written demand that the grantee do so comply with any such requirement, limitation, term condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the grantee continues for a period of thirty (30) days following such written demand or, in any case where such compliance cannot reasonably be completed within thirty (30) days, other such longer period of time as reasonably set by the town, the town shall place its request for termination of the franchise upon a regular council meeting agenda. The town shall cause to be served upon such grantee at least seven (7) business days prior to the date of such council meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published by the town clerk at least once, seven (7) business days before such meeting in a newspaper of general circulation within the town.
(2) The council shall hear any persons interested therein, and shall determine in its reasonable judgment, whether or not any failure, refusal or neglect by the grantee was with just cause.
(3) If such failure, refusal or neglect by the grantee was with just cause, defined by the town, the council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.
(4) If the council shall determine such failure, refusal, or neglect by the grantee was without just cause, then the council may, by resolution, declare that the franchise of the grantee shall be terminated and bond forfeited unless there be compliance by the grantee within ninety (90) days.
(e) Disposition of facilities. In the event a franchise expires, is revoked or otherwise terminated, the town may, in its sole discretion, effect a transfer of ownership of the system to another party or require grantee to remove its facilities from town rights-of-way.
(f) Restoration of property. In the event grantee removes its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public property, rights of way, private property, and places in as reasonably good condition or better as that prevailing prior to the grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The town shall inspect and approve the condition of the public rights of ways and public places and cables, wires, attachments, and poles after removal. The liability, indemnity, insurance and performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this paragraph, this chapter and the franchise.
(g) Restoration by town; reimbursement of costs. In the event of a failure by the grantee to complete any work required by sections 6-6 and 6-8 and/or (f) above, or any other work required by town law or ordinance within the time as may be established and to the satisfaction of the town, the town may cause such work to be done and the grantee shall reimburse the town the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the town may recover such costs through the performance bond or letter of credit provided by grantee. The town shall be
permitted to seek legal and equitable relief to enforce the provisions of this section.
(b) Extended operation. Upon either the expiration or revocation of a franchise, the town may negotiate with the grantee to continue to operate the system for a period of time from the date of such expiration or revocation, or until such time as is mutually agreed upon. The grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this chapter and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at the time.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-20. Receivership and foreclosure.
(a) Termination by insolvency. The franchise granted hereunder shall, at the option of the town, cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
(1) Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all defaults under the franchise; and
(2) Such receivers, or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise herein granted.
(b) Termination by judicial action. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the grantee or any part thereof, including or excluding the franchise, the town may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee granted hereunder shall cease and terminate thirty (30) days after service of such notice, unless:
(1) The town shall have approved the transfer of the franchise, in the manner this chapter provides; and
(2) Such successful bidder shall have covenanted and agreed with the town to assume and be bound by all the terms and conditions of the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-21. Equal opportunity policy.
Equal opportunity employment shall be afforded by all operators of cable television systems to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, age, national origin, sex, or physical handicap. Grantee shall comply with all equal opportunity provisions enacted by federal, state and local authorities, as well as all such provisions contained in this chapter and the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-22. Notices.
All notices from grantee to the town pursuant to this chapter and the franchise shall be to the town manager or his/her designee. Grantee shall maintain with the town, throughout the term of the franchise, an address for service of notices by mail. Grantee shall also maintain with the town, a local office and telephone number for the conduct of matters related to the franchise during normal business hours. The grantee shall be required to advise the town of such address(es) and telephone numbers and any changes thereof.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-23. Failure to enforce, no waiver.
The grantee shall not be excused from complying with any of the terms and conditions of this chapter or the franchise by any failure of the town upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-24. Rights reserved to the grantor.
(a) Right of inspection of records. The
town shall have the right to inspect all books, records, reports,
maps, plans and financial statements of the grantee relating to
operations within the town as reasonably necessary to the
administration of the chapter and the franchise on reasonable
notice during normal business hours.
(b) Right of inspection of construction. The town shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this chapter and other pertinent provisions of the law provided that such inspections and/or tests shall be conducted in a manner which minimizes interference with the grantee's normal operations. The grantee shall make a good faith effort to assist the town with such inspections and/or tests.
(c) Right of inspection of property. At all reasonable times, grantee shall permit examination by any duly authorized representative of the town, of system and system facilities, together with any appurtenant property of grantee situated within or without the town.
(d) Right of intervention. The town shall have the right of intervention in any suit or proceeding to which the grantee is party and in which the town shall have a material interest. The grantee shall not oppose such intervention by the town.
(e) Right to require removal of property. Upon denial of renewal of this chapter or the franchise, or upon its revocation or expiration, as provided for herein, the town shall have the right to require the grantee to remove, at its own expense, all portions of the cable communications system required by public necessity from all streets and public ways within the town.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-25. No recourse against the grantor.
The grantee shall have no recourse whatsoever against the town or its officials, boards, commissions, agents, or employees for any loss, cost, expense or damage arising out of any provision or requirements of the franchise or because of the lawful enforcement of this chapter or the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE III. REGULATION OF FRANCHISE
Sec. 6-26. Regulatory authority.
(a) The town shall exercise appropriate regulatory authority under the provisions of this chapter and applicable law. This authority shall be vested in the town council and administered through the town manager or his designee in order to provide day-to-day administration and enforcement of the provisions of this chapter and any franchise granted hereunder, and to carry out the town's responsibilities with regard to cable communications.
(b) The town reserves the right to exercise the maximum plenary authority allowed by state and federal law, regarding rates, technical standards and consumer protection.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-27. Supervision of the franchise.
(a) The town shall have the following regulatory responsibility:
(1) Administration and enforcement of the provisions of this chapter and any franchise granted hereunder.
(2) Award, renewal, extension or termination of a franchise pursuant to the provisions of this chapter, the franchise, and other applicable law.
(3) Consent prior to sale or transfer or any franchise granted hereunder.
(4) Performance evaluation.
(5) Rate regulation, if applicable and if the town chooses to exercise its regulatory authority.
(b) The town also reserves the right to perform the following functions:
(1) Develop objectives and coordinate activities related to the operation of government channels.
(2) Approve procedures and standards for public, government and educational access operations and services, including the use of dedicated channels and sharing of public facilities.
(3) Review and make recommendations on plans for expansion, interconnection and growth of cable services.
(4) Review and make recommendations on the possibility of integrating cable communications with other town, state or regional telecommunications networks.
(5) Formulate and recommend long-range telecommunications policy for the town, and determine the future cable-related needs and interests of the community.
(6) Provide the administrative effort necessary for the conduct of performance evaluations, and any other activities required for the administration of this chapter or the franchise.
(7) Monitor grantee's process for handling citizen complaints and periodically inspect and analyze the records related to such complaints.
(8) Receive applications for rate increases if applicable and provided staff assistance in the analysis and recommendations thereto.
(9) Monitor grantee's adherence to operational standards, service requirements and line extension policies.
(10) Assure compliance with applicable laws and ordinances.
(11) Arrange tests and analysis of equipment and performance, as needed to insure compliance with this chapter and the franchise.
(12) Assure continuity in service.
(13) Receive for examination all data and reports required by this chapter.
(c) Creation of cable television advisory commission. There may be established a citizen's advisory commission entitled the cable television advisory commission, which shall consist of between three (3) and seven (7) members representing the population characteristics of the residents of the town. Members may be appointed by the town council for terms up to three (3) years. No person shall be appointed as a member of the commission for more than two (2) consecutive terms. The commission shall adopt bylaws governing its procedures and actions on matters coming before it.
(d) Responsibilities of the cable television advisory commission. The responsibilities of the cable television advisory commission may, as set by the town, include but not be limited to the following:
(1) Monitor and advise the town council and town administration on the provisions of the town's cable television ordinance and related ordinances.
(2) Prepare an annual report to the council.
(3) Cooperate with the town and the grantee in fulfilling its responsibilities herein.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-28. Rates and charges.
(a) At least thirty (30) days in advance of any change, the grantee shall file schedules with the town which shall describe all services offered, all rates and charges of any kind, and all terms and conditions relating thereto.
(b) Grantee shall establish rates that are nondiscriminatory.
(c) To the extent that federal or state law or regulation may now, or as the same may hereafter be amended to, authorize the town to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by grantee, the town shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the town.
(d) If and when exercising rate regulation, the town shall consider, along with any other information it deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: the ability of the grantee to render system services and to derive a reasonable profit therefrom under the existing rate schedule and under the proposed rate schedule; the revenues and profits derived from system services; the efficiency of the grantee; the quality of the service offered by the grantee; the fair value cost of the system less depreciation; a fair rate of return over the life of the franchise with respect to grantee's investment as standard in the industry in comparable franchise areas; the extent to which grantee has adhered to the terms of this chapter and the franchise; fairness to town residents, subscribers, and users. The town shall not consider any valuation based upon this chapter or the franchise and the items of value shall neither be amortized as an expense nor shall a return be paid on them. The town may retain rate consultants as it deems appropriate, and all reasonable charges for such independent consultants shall be paid by the town.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-29. Performance evaluation.
(a) Special evaluation sessions may be held at any time during the term of the franchise at the request of the town.
(b) All evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with public notice, as provided in Section 10.1. Grantee shall notify subscribers of all such evaluation sessions by announcement on a designated access channel on the system between the hours of 11:00 a.m. and 9:00 p.m. for five (5) consecutive days preceding each session.
(c) Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance and construction, grantee compliance with this chapter and the franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions.
(d) During the review and evaluation by the town, the grantee shall fully cooperate with the town and shall provide such information and documents as the town may need to reasonably perform its review.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE IV. BONDS, INSURANCE AND INDEMNIFICATION
Sec. 6-30. Performance bond and letter of credit.
(a) Performance bond. The town may, at its discretion, require the grantee, not later than forty-five (45) days after the effective date of the franchise, to obtain and maintain during the entire term of the franchise and any extensions and renewals thereof, at its cost and expense, and file with the town, a corporate surety bond in an amount specified in this chapter or the franchise to guarantee the faithful performance of the grantee of all its obligations provided under this chapter and the franchise. Failure to timely obtain, file and maintain said bond shall constitute a substantial violation within the meaning of this section.
(b) Conditions. The performance and/or payment bond shall provide the following conditions:
(1) There shall be recoverable by the town jointly and severally from the principal and surety, any and all fines and liquidated damages to the town and any and all damages, losses, costs, and expenses' suffered or incurred by the town resulting from the failure of the grantee to: faithfully comply with the provisions of this chapter and the franchise; franchise fee not in dispute; pay any claims, liens or taxes due the town which arise by reason of the construction, operation, maintenance or repair of the cable system. Such losses, costs and expenses shall include but not be limited to attorney's fees and other associated expenses.
(2) The total amount of the bond shall be forfeited in favor of the town in the event:
a. The grantee abandons the cable system at any time during the term of the franchise or any extension thereto; or
b. The grantee assigns the franchise without the express written consent of the town.
(c) Reduction of bond. Upon written application by the grantee, the town may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the grantee shall be without prejudice to the grantee's subsequent applications or to the town's right to require the full bond at any time thereafter. However, no application shall be made by the grantee within one year of any prior application.
(d) Letter of credit. The town may, at its discretion, require the grantee to obtain, maintain and file with the town an irrevocable letter of credit from a financial institution licensed to do business in the state in an amount specified in the franchise, naming the town as beneficiary. The form and contents of such letter of credit shall be approved by the town and shall be released only upon expiration of the franchise or upon the replacement of the letter of credit by a successor grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a substantial
violation within the meaning of this section.
(e) Conditions. The town may draw upon the letter of credit if the grantee fails to: faithfully comply with the provisions of this chapter and the franchise; comply with all orders, permits and directives of any town agency or body having jurisdiction over its acts or defaults; pay fees due to the town; or pay any claims, liens or taxes due the town which arise by reason of the construction, operation, maintenance or repair of the cable system.
(f) Use of performance bond and letter of credit. Prior to drawing upon the letter of credit and/or the performance bond for the purposes described in this section, the town shall notify the grantee in writing that payment is due and the grantee shall have ten (10) days from the receipt of such written notice to make a full and complete payment. If the grantee does not make the payment within ten (10) days, the town may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond.
(g) Notification. Within three (3) days of a withdrawal from the letter of credit and/or performance bond, the town shall send to the grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.
(h) Replenishment of letter of credit and performance bond. No later than thirty (30) days after mailing to the grantee by certified mail notification of a withdrawal pursuant to paragraph (f) above, the grantee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this chapter.
(i) Non-renewal, alteration, or cancellation of letter of credit or performance bond. The performance bond and/or letter of credit required in the franchise shall be in a form satisfactory to the town and shall require thirty (30) days written notice of any non-renewal, alteration or cancellation to both the town and the grantee. The grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the town, written evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the town or the grantee of any notice of cancellation.
(j) To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three-year period of the franchise, applicable to the next three-year period, upon the determination of the town.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-31. Liability and insurance.
(a) Prior to commencement of construction, but in no event later than sixty (60) days after the effective date of the franchise and thereafter continuously throughout the duration of the franchise and any extensions or renewals thereof, the grantee shall furnish to the town, certificates of insurance, approved by the town, for all t ypes of insurance required under this section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this chapter.
(b) Certificates of insurance obtained by the grantee in compliance with this section shall be filed and maintained with the town clerk during the term of the franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation.
(c) Neither the provisions of this section or any damages recovered by the town hereunder, shall be construed to or limit the liability of the grantee under any franchise issued hereunder or for damages.
(d) All insurance policies maintained pursuant to this chapter or the franchise shall contain the following, or a comparable, endorsement:
It is hereby understood and agreed that this insurance policy may not be cancelled by the insurance company nor the intention not to renew be stated by the insurance company until thirty (30) days after receipt by the town manager, by registered mail, of a written notice of such intention to cancel or not to renew.
(e) All contractual liability insurance policies maintained pursuant to this chapter or the franchise shall include the provision of the following hold harmless clause:
The grantee agrees to indemnify, save harmless and defend the town, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney's fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this agreement and performed or caused to be performed by grantee. The foregoing indemnity shall apply except if such injury, death or damage is caused by the negligence or other fault of the town, its agents, servants, or employees or any other person indemnified hereunder.
(f) All insurance policies provided under the provisions of the franchise shall be written by companies authorized to do business in the state, and approved by the state board of insurance.
(g) At any time during the term of the franchise, the town may request and the grantee shall comply with such request, to name the town as an additional named insured for all insurance policies written under the provisions of this chapter or the franchise.
(h) To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three-year period of the franchise, applicable to the next three-year period, upon the determination of the town.
(i) General liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, general liability insurance insuring the grantee in the minimum of:
(1) Five hundred thousand dollars ($500,000.00) for property damage per occurrence;
(2) One million dollars ($1,000,000.00) for property damage aggregate;
(3) One million dollars ($1,000,000.00) for personal bodily injury to any one person; and
(4) Two million dollars ($2,000,000.00) bodily injury aggregate per single accident or occurrence.
(j) Such general liability insurance must include coverage for all of the following: comprehensive form, premises-operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury.
(k) Automobile liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:
(1) One million dollars ($1,000,000.00) for bodily injury and consequent death per occurrence;
(2) One million dollars ($1,000,000.00) for bodily injury and consequent death to any one person.
(3) Five hundred thousand dollars ($500,000.00) for property damage per occurrence.
(l) Worker's compensation and employer's liability insurance. The grantee shall maintain and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, worker's compensation and employer's liability, valid in the state, in the minimum amount of:
(1) Statutory limit for worker's compensation.
(2) One hundred thousand dollars ($100,000.00) for employer's liability.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-32. Indemnification.
(a) Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the town, its officers, boards and commissions, and town employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the town in connection therewith):
(1) To persons or property, in any way arising out of or through the acts or omissions of grantee, its servants, agents or employees, or which shall be caused by grantee's negligence.
(2) Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation (excluding claims arising out of or relating to public, educational, and government access programming) with the respect to services provided or caused to be provided by grantee.
(3) Arising out of grantee's failure to comply with the provisions of any federal, state, or local statute ordinances or regulation applicable to grantee in its business hereunder.
(b) The foregoing indemnity is conditioned upon the following:
The town shall give grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the town from cooperating with grantee and participating in the defense of any litigation by its own counsel at its sole cost and expense.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE V. DESIGN AND CONSTRUCTION PROVISIONS
Sec. 6-33. Authority to construct.
(a) Authorization to commence construction and application procedures. Within 90 days of the adoption of a franchise agreement, Franchisee shall meet with the Town Manager and/or his/her designee to review the status of the initial system’s construction plan and eighteen (18) month construction schedule. Within thirty (30) days following this meeting, the grantee shall apply for any needed contracts for use of poles. Within thirty (30) days after completion of the make-ready survey identifying the routes of the system facility, the grantee shall apply for all additional licenses from the state, town, or other necessary parties, such as the railroads for crossing under or over their property. In any event, all necessary applications for permits, licenses, certificates and authorizations shall be applied for in a timely fashion so that such filing and processing shall not interfere with or cause delay with the construction scheduled as outlined in the franchise. Failure to make such timely application and timely filing shall constitute a substantial violation of this chapter.
(b) Power to contract. Upon grant of the franchise and in order to construct, operate and maintain a cable system in the town, the grantee may enter into contracts with any public utility companies or any other owner or lessee of any poles or underground areas located within or without the town; obtain right-of-way permits from appropriate town, state, county, and federal officials necessary to cross or otherwise use highways or roads under their respective jurisdiction; obtain permission from the Federal Aviation Administration to erect and maintain antennas; and obtain whatever other permits the town, county, state or federal agency may require.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-34. Construction and technical standards.
(a) Compliance with construction and technical standards. Grantee shall construct, install, operate and maintain its system in a manner consistent with all laws, ordinances, construction standards, governmental requirements, FCC technical standards, requirements of the franchise, and detailed technical standards submitted by grantee as part of its application, which standards are incorporated by reference herein. The grantee, through the system, shall provide uniform, strong signals which are free from any significant distortion and interference. The system shall be designed, constructed, operated and maintained for twenty-four (24) hours a day continuous operation. The system shall produce, for reception on subscribers' receivers which are in good working order, either monochrome or color pictures (providing the receiver is color capable) which are free from any significant interference or distortion which would cause any material degradation of video or audio quality.
(b) State-of-the-art. The grantee shall construct, install, operate and maintain its system in accordance with the highest standards of the art of cable communications, such standards to include but not be limited to the following:
(1) The system will be spaced to permit a minimum of seven hundred fifty (750) MHz operation and will be capable of utilizing state-of-the-art converters.
(2) The grantee shall maintain its system facilities in a manner which will continue to enable it to add new services and associated equipment as they are developed, available, and proved marketable to subscribers. The new services and associated equipment will be added to the system facilities as specified in the franchise or, if not specified in the franchise, when they are determined to be technically reliable and adaptable to the system at a cost to the subscriber that is acceptable in the marketplace.
(c) Prior to the erection of any towers, poles or conduits or the upgrade or rebuild of the cable communications system under this chapter, the grantee shall make available to the town and other appropriate parties for approval a concise description of the facilities proposed to be erected or installed, including engineering drawings, if required, together with a map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, underground conduit, or fixture or and rebuilds or upgrading of the cable communications system shall be commenced by any person until approval, therefore, has been received from the town consistent with all applicable town ordinances and regulations and timeframes.
(d) Contractor qualifications. Any contractor proposed for work of construction, installation, operation, maintenance, and repair of system equipment must be properly licensed under laws of the state, and all local ordinances. The town reserves the right to approve or reject Franchisee’s selection of contractors or subcontractors who are hired to work on public property or public rights of way, as specified in the franchise agreement.
(e) The grantee's system and associated equipment erected by the grantee within the town shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. No pole or other fixtures placed in any public ways by the grantee shall be placed in such a manner as to interfere with normal travel on such public way.
(f) The town 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.
(g) Construction, installation, operation, upgrade, and maintenance of the cable communications system shall be performed in an orderly and workmanlike manner, in accordance with then current technological standards. All cables and wires shall be installed, where possible, parallel with electric and telephone lines and preferably underground. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.
(h) Grantee shall at all times comply with: (1) National Electrical Safety Code (National Bureau of Standards); (2) National Electrical Code (National Bureau of Fire Underwriters); (3) Bell System Code of Pole Line Construction as it applies to cable television construction; (4) applicable FCC or other federal, state and local regulations; and standards as set forth in this chapter or the franchise, (5) Manual on Uniform Traffic Control Devices, and (6) the Town of Cary’s Design Specifications and Detail Manual
(i) In any event, the system shall not endanger interfere with the safety of persons or property in the franchise area or other areas where the grantee may have equipment located.
(j) Any antenna structure used in the cable communications system shall comply with construction, marking, and lighting of antenna structure standards as required by federal and state law or regulation.
(k) All worker facilities, conditions, and procedures that are used during construction, installation, operation, and maintenance of the cable system shall comply with the standards of the Occupational Safety and Health Administration.
(l) RF leakage shall be checked at reception location for emergency radio services to prove measurable interference signal combinations are possible. Stray radiation shall be measured adjacent to any proposed aeronautical navigation radio sites to prove no measurable interference to airborne navigational reception in the normal flight pattern. FCC rules and regulations shall govern.
(m) The grantee shall maintain equipment capable of providing standby power for a minimum of eight (8) hours for the headend and four (4) hours for transportation and trunk amplifiers.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-35. System construction schedule.
The franchise shall specify the construction schedule which shall be approved by the Town before initial or upgrade construction begins.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-36. Extension of service.
The franchise shall specify extension of service requirements.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-37. Use of streets.
(a) [Underground installations.] All installations shall be underground in those areas of the town where required by town ordinance. While grantees are encouraged to always place plant underground, in areas where either telephone or electric utility facilities are above ground at the time of installation, grantee may install its service above ground, provided that at such time as those facilities are required to be placed underground by the town or are placed underground, the grantee shall likewise place its services underground without additional cost to the town or to the individual subscriber so served with the town. Where not otherwise required to be placed underground by this chapter or the franchise, the grantee's system shall be located underground at the request of the adjacent property owner, provided that the excess cost over the aerial location shall be borne by the property owner making the request. All cable passing under the roadway shall be installed in conduit.
(b) [Use agreements.] Prior to construction or alteration, however, the grantee shall make available to the town with the appropriate town agencies, complete use agreements with the utility companies, obtain all construction permits and receive written approval of the town before proceeding, which approval shall not be unreasonably withheld.
(c) Interference with persons, improvements, public and private property and utilities. The grantee's system and facilities, including poles, lines, equipment and all appurtenances, shall be located, erected and maintained so that such facilities shall:
(1) Not endanger or interfere with the health, safety or lives of persons;
(2) Not interfere with any improvements the town, county or state may deem proper to make;
(3) Not interfere with the free and proper use of public streets, alleys, bridges, easements or other pubic rights of ways, places or property, except to the minimum extent possible during actual construction or repair;
(4) Not interfere with the rights and reasonable convenience of private property owners, except to the minimum extent possible during actual construction or repair; and
(5) Not obstruct, hinder or interfere with any gas, electric, water or telephone facilities or other utilities located within the town.
(d) Restoration to prior condition. In case of any disturbance of public or private pavement, sidewalk, driveway, lawn, landscape, or other surfacing, the grantee shall, at its own cost and expense and in a manner approved by the town and consistent with the franchise, replace and restore all paving, sidewalk, driveway, landscaping, or surface of any street or alley disturbed, in as reasonably good a condition as, or better than, before said work was commenced and in a good workmanlike, timely manner in accordance with standards for such work set by the town in the franchise. Unless prevented by circumstances beyond the grantee's control, such restoration shall be completed within no more than ten (10) business days after the damage is incurred..
(e) Relocation of the facilities. In the event that at any time during the period of the franchise, the town, county or state shall lawfully elect to alter, or change, the grade of any street, alley or other public ways, the grantee, upon reasonable notice by the proper authority, shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense as detailed in the franchise agreement
(f) Cooperation with building movers. The grantee shall, on the request of any person holding a building moving permit issued by the town, temporarily raise or lower its wire to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than fifteen (15) working days' advance notice to arrange for such temporary wire changes.
(g) Tree trimming. The grantee shall have the authority, except when in conflict with existing town ordinances, to trim any trees upon and overhanging public right-of-way so as to prevent the branches of such trees from coming in contact with system facilities, except that at the option of the town, such trimming may be done by it, or under its supervision and direction, at the reasonable expense of the grantee.
(h) Easements. All necessary easements over
and under private property shall be arranged for by the grantee
and presented to the Town pursuant to the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-38. Erection, removal and common use of poles.
(a) No poles shall be erected by the grantee without prior approval of the town with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wireholding structure of the grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the town determines that the public convenience would be enhanced thereby.
(b) Where poles already exist for use in serving the town are available for use by the grantee, but it does not make arrangements for such use, the town may require the grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the grantee are just and reasonable.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-39. Construction reporting requirements.
(a) Within thirty (30) days of the granting of a franchise pursuant to this chapter, the grantee shall provide the town with a written progress report detailing work completed to date. Such report shall include a description of the progress in applying for any necessary agreements, licenses, or certifications and any other information the town manager may deem necessary. The content and format of the report will be determined by the town manager and may be modified at his/her discretion. Other reports may be required in the franchise.
(b) Such written progress reports shall be submitted to the town on a quarterly basis throughout the entire construction process. The town manager may require more frequent reporting if he/she determines it is necessary to better monitor the grantee's progress.
(c) Not more than 72 hours and not less than 24 hours prior to the commencement of any system construction, the grantee shall provide door hangers or similar direct notice to all residents of the area to be under construction, which shall describe the activity that will be taking place.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-40. Tests and performance monitoring.
(a) Not later than ninety (90) days after any new or substantially rebuilt portion of the system is made available for service to subscribers, and thereafter on the annual anniversary of the effective date of the franchise the grantee shall conduct technical performance tests to demonstrate full compliance with all technical standards contained in this chapter and the franchise, and the technical standards and guidelines of the FCC.
(b) Such tests shall be performed by, or under the supervision of qualified system personnel with proper training and experience. A copy of the report certified by a registered professional engineer shall be submitted to the town, describing test results, instrumentation, calibration, and test procedures, and the qualification of the engineer responsible for the tests.
(c) System monitor test points shall be established at or near the output of the last amplifier in the longest feeder line, at or near trunk line extremities. Such periodic tests shall be made at the test points as shall be required by the FCC and the franchise.
(d) In addition to the performance test reports required herein, a copy of any performance test reports required by the FCC shall be submitted to the town within sixty (60) days of completion.
(e) Whenever there have been multiple, similar complaints made or when there exists other evidence, which, in the judgment of the town, casts doubt on the reliability or quality of the grantee's system, the town shall have the right and authority to compel the grantee to test, analyze, and report on the performance of its system. The grantee shall reasonably determine the nature and extent of testing required to make an adequate evaluation of system performance. Reports on such tests shall be delivered to the town no later than fourteen (14) days after the town formally notifies the grantee and shall include the following information: the nature of the complaints which precipitated the special tests; what system component was tested; the equipment used, and procedures employed in said testing; the results of such tests; and methods by which said complaints were resolved. Said tests and analyses shall be performed by qualified system personnel. A professional engineer shall certify all records of the special tests and forward same to the town with a report interpreting the results of the tests and recommending what actions should be taken by the grantee. All such tests shall be at the expense of the grantee. If the cause of the problem has not been identified by the tests or resolved and complaints continue, the grantee shall use its best efforts to resolve the problem in a timely manner.
(f) The town shall have the right to employ qualified consultants if necessary or desirable to assist in the administration of this, or any other section of this chapter or the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE VI. SERVICE PROVISIONS
Sec. 6-41. Services to subscribers and users.
(a) Concurrently with the activation of the cable communications system in the town, the grantee shall provide all services to subscribers as described herein and in the franchise.
(1) The system shall carry the broad categories of programming and services listed in the franchise. Should the grantee desire to change the selection of programs or services offered on any of its tiers, it shall maintain the mix, quality and level of services provided over the system. Any such change in programs or services offered shall comply with the conditions and procedures contained in the franchise, and shall be reported to the town at least thirty (30) days prior to the proposed implementation. The grantee shall use its best efforts to ensure diversity of programming.
(2) A basic service tier shall be offered to subscribers throughout the term of this chapter or the franchise.
(3) The grantee shallprovide and maintain service on the basic tier, at a minimum, the following access channels whose purposes are outlined below according to the terms of the franchise:
a. Government access channel which shall be a specifically designated channel for local governmental use and shall be managed, scheduled and programmed exclusively by the Town.
b. Educational channel which shall be a specifically designated channel for use by local public and private school authorities, and shall be managed, scheduled and programmed exclusively by them.
c. Public access channel, which will be a specifically designated channel available on a first-come, first-served, non-discriminatory basis.
d. Institutional access channel, which will be or the delivery of institutional, closed-circuit programming on an access channel to all public building locations receiving free drops.
(4) The grantee shall make available leased access channels to assure that the widest possible diversity of information sources are made available to subscribers.
a. Such channels shall be specifically designated for leased access use by persons unaffiliated with the grantee, at rates which are fair and reasonable.
b. The number of such channels shall be determined by the provisions of the Cable Communications Policy Act of 1984 or other applicable federal or state law. Notwithstanding changes in applicable law, grantee shall make available at least one leased access channel.
c. Grantee shall not exercise any editorial control over any programming provide d over such channels, except that grantee may consider such content to the minimum extent necessary to establish a fair and reasonable price for the use of such channels.
(5) The grantee shall fully provide, at a minimum, services, facilities and equipment for public, educational and government access as indicated in the franchise.
(b) Emergency override. The grantee shall, without charge, provide, service and maintain public emergency transmission facilities to the town, as described in the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-42. Installations, connections and other grantee services.
(a) Standard installations. Standard installation shall consist of a service not exceeding one hundred fifty (150) feet from a single point or pedestal attachment to the customer's residence. Service in excess of one hundred fifty (150) feet and concealed wiring shall be charged for the costs which exceed those of a standard installation. The desire of the subscriber as to the point of entry into the residence shall be observed whenever possible. Runs in building interiors shall be as unobtrusive as reasonably 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 completed within no more than ten (10) business days after the damage is incurred.
(b) Deposits. The grantee shall comply with any state or federal regulations regarding interest on any deposit required by the grantee.
(c) Antennas and antenna switches. The grantee shall not, as a condition to providing cable communications service, require any subscriber or potential subscriber, to remove any existing antenna structures for the receipt of over-the-air television signals. The grantee shall install, upon the request of the subscriber an RF or antenna switch for a reasonable charge or a fee set by the FCC.
(d) Parental control devices. The grantee shall provide to the potential subscriber, as part of its promotional literature, information concerning the availability of a parental control (ockout) device for use by a subscriber. The grantee reserves the right to require a reasonable deposit for the use of this device, as set forth in the rate schedule. The lockout device described herein shall be made available to all subscribers requesting it beginning on the first day that any cable service is provided.
(e) Reconnection. Grantee shall restore service to customers wishing restoration of service provided customer shall first satisfy any previous obligations owed, including any established reconnect fee.
(f) Free disconnection. Subscribers shall have the right to have cable service disconnected without charge. Such disconnection shall be made as soon as possible pursuant to the franchise agreement following notice to grantee of same. A refund of unused service charges shall be paid to the customer within forty-five (45) days from the date of termination of service.
(g) Delinquent accounts. Grantee shall use its best efforts to collect on delinquent subscriber accounts. At the grantee's option, service will not be disconnected if a delinquent customer agrees at any time to be placed on a regular payment plan to clear the account. In all cases, the grantee shall provide the customer with at least ten (10) business days written notice prior to disconnection.
(h) Prohibited activities. In the conduct of its business franchised hereunder, neither the grantee nor its officers, employees, or agents shall directly or indirectly sell, lease, repair, install, or maintain television sets or receivers or antennas, provided, however, that nothing hereunder shall prohibit grantee, at customers request and without payment, from examining or adjusting customer's receiving set to determine whether reception difficulties originate in the set or in the grantee's system.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-43. Service calls and complaint procedures.
(a) The grantee shall establish, operate and maintain in the town a business office and maintenance and repair facility for the purpose of receiving inquiries, requests and complaints concerning all aspects of the construction, installation, operation, and maintenance of the system and for the payment of subscribers' service charges.
(b) The grantee shall have a listed, local telephone number for service calls and such telephone service shall be available twenty-four (24) hours a day, seven (7) days a week. Said number shall be made available to subscribers and the general public. The grantee shall provide an unlisted local telephone number to the town and utility companies to enable the town or utility companies to reach the grantee in case of emergency on a twenty-four-hour, seven (7) days a week basis.
(c) The grantee shall respond to and resolve subscribers' complaints or requests for service in connection with repairs and maintenance and malfunctions of system facilities. The grantee shall respond as quickly as possible to such complaints and requests, but shall in any case respond within twenty-four (24) hours. Complaints or requests which may pose a potential health and safety hazard will be responded to immediately. In connection with billing complaints, the grantee shall respond within seven (7) business days.
(d) The grantee shall prepare and file with the town copies of all of its rules and regulations in connection with the handling of inquiries, requests and complaints. The grantee shall, by appropriate means, such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and furnish information concerning the town office responsible for the administration of the franchise, including, but not limited to, the address and telephone number of said office.
(e) The grantee shall keep full records in connection with all complaints in connection with the system. Such records shall identify the person contacting the grantee, and the person responding on behalf of the grantee, the subject matter of the contact, the date and time it was received, the resolution of the matter in question or the action taken by the grantee in connection with the contact, and the date and time thereof, and such other information as may be deemed pertinent by the grantee. These records shall be made available for periodic inspection by the town.
(f) The grantee shall service or replace without charge all defective equipment provided by it to the subscriber, provided, however, that the grantee may charge a subscriber for service to or replacement of any equipment damaged due to negligence of such subscriber.
(g) The town may review and monitor unresolved customer complaints.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-44. Continuity of service mandatory.
(a) It shall be the right of all subscribers to receive continuous, uninterrupted service insofar as their financial and other obligations to the grantee are honored.
(b) In the event that the grantee elects to rebuild, modify or sell the system, or the town gives notice of intent to terminate or fails to renew its franchise, the grantee shall cooperate with the town or new grantee or operator in maintaining continuity of service to all subscribers. During such period, grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for the services when it no longer operates the system.
(c) Failure to provide continuity. In the event the grantee fails to operate the system for seven (7) consecutive days without prior approval of the town or without just cause, the town may, at its option, operate the system or designate an operator until such time as grantee restores service under conditions acceptable to the town or a permanent operator is selected. If the town is required to fulfill this obligation for the grantee, the grantee shall reimburse the town for all reasonable costs or damages in excess of revenues from the system received by the town that are the result of the grantee's failure to perform.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-45. Protection of subscriber privacy.
(a) Protection of subscriber privacy mandatory. Grantee shall at all times protect the privacy of subscribers, as provided in this chapter and other applicable federal, state, and local laws.
(b) Notice of privacy provisions. At the time of entering into an agreement to provide any cable service or other service to a subscriber, and at least once a year thereafter, grantee shall provide notice in the form of a separate written statement to subscriber which clearly and conspicuously informs the subscriber of:
(1) The privacy rights of the subscriber and the limitations placed upon grantee with regard to Article VIII hereof and all other applicable federal, state, and local subscriber privacy provisions;
(2) The nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information;
(3) The nature, frequency, and purpose of any disclosure which may be made of such information, including an identification of the types of persons to whom the disclosure may be made;
(4) The period during which such information might be maintained by the cable operator;
(5) The times and place at which the subscriber may have access to such information in accordance with this chapter and other applicable federal, state, and local law.
(c) Collection of personally identifiable information prohibited. Grantee shall not use or permit the use of the cable system to collect personally identifiable information concerning any subscriber, except as necessary to render a cable service or other service provided by the cable operator to the subscriber. Grantee shall not install or permit the installation of any special terminal equipment in any subscriber's premises for the two-way transmission of any aural, visual, or digital signals without the prior written consent of the subscriber. Grantee shall not tabulate, nor permit others to tabulate, any subscriber use of the cable system which would reveal the opinions or commercial product preferences of individual subscribers, whether residential or business, or of any occupant or user of the subscriber's premises without written authorization from the subscriber for his or her participation in a shop-at-home or similar service. When providing such service, the grantee may tabulate only those responses essential to the functioning of that shopping or other service, and may not use any such tabulation of individual preferences for any other purposes. Tabulations of aggregate opinion or preference are permitted, provided the aggregations are sufficiently large to assure individual privacy.
(d) Disclosure of subscriber information prohibited. Initially and upon installation thereafter, grantee shall provide to each subscriber a form to complete if the subscriber does not want the grantee to sell or otherwise make available to any party subscriber name and address or any personal data, social security number, income and other data the company may have on file about the individual subscriber, except as necessary to render or conduct a legitimate business activity related to a cable service or other service provided by the cable operator to the subscriber, provided however that such disclosure shall not reveal directly or indirectly the extent of viewing or other use by the subscriber of a cable service or other service provided by the cable operator, or the nature of any transaction made by the subscriber over the cable system.
(e) Grantee shall not predicate regular subscriber service on the subscriber's grant or denial of permission to collect, maintain or disclose personally identifiable information. A subscriber may at any time revoke any permission previously given by delivering to the grantee a written statement of that intent.
(f) Each subscriber shall be provided access to all personally identifiable information regarding such subscriber that grantee collects or maintains or allows to be collected or maintained, and such subscriber shall be provided the opportunity to correct any error in such information.
(g) Any information concerning individual subscriber viewing habits or responses, except for information for billing purposes, shall be destroyed within sixty (60) days. Information for billing purposes shall be kept for two (2) years and then destroyed unless otherwise required to be kept by law.
(b) This section is not intended to prohibit the use or transmission of signals useful only for the control or measurement of system performance.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-46. Rights of individuals.
(a) Nondiscrimination required. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin, age, sex, or physical or mental handicaps, provided the subscriber shall pay all applicable fees for the service desired. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this chapter by reference.
(b) Fairness of accessibility. The entire system of the grantee shall be operated in a manner consistent with the principles of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies and other entities having a legitimate use for the network; and no one shall be arbitrarily excluded from its use; allocation of use of said facilities shall be made according to the rules or decisions of the grantee and any regulatory agencies affecting the same.
(c) Information accessibility.
(1) Each individual shall have the right to information concerning the provisions of this chapter and the rules and regulations formulated pursuant to it by the council, the grantee, agent or entity created hereunder or pursuant to this chapter.
(2) Each individual subscribing to the services of the cable communications system or leasing channels thereof shall be provided with written information setting forth all rules and regulations specifically outlining such individual rights pertinent to such use. All rights specifically provided in this section shall be noted.
(3) Such information as may herein be prescribed will be made available to the public and individual subscribers in such form required for understanding, including the deaf and blind.
(4) Each document submitted to the town under the provisions of this chapter or pursuant to it, except those required and designated confidential by the Federal Communications Commission is a public document, available for public inspection and copying at the requestor's expense, at the office of the grantee or the town during normal business hours. The charge for such copying shall approximate the cost of mechanical reproduction and shall not include a charge for labor.
(5) Each individual shall have the right to representation on such boards, commissions, agencies or other entities created hereunder or hereafter by the town council pursuant to the provisions of this chapter. Such representation by citizens of the town shall be in the manner and form as the town council may determine, insuring equal participation of all protected groups. Grantee shall strictly adhere to the equal employment opportunity requirements of federal, state and local regulations, as may be applicable, and as amended from time to time.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE VII. BOOKS, RECORDS AND REPORTS
Sec. 6-47. Books and records available to the grantor.
(a) The grantee shall maintain an office
within the franchise area, and manage all of its operations in
accordance with a policy of open books and records to the town.
The town shall have the right to inspect at any time during
normal business hours, all pertinent books, records, maps, plans,
income tax returns, financial statements, service complaint logs,
performance test results and other like materials of the grantee
which relate to the operation of the franchise.
(b) Grantee shall permit any duly authorized representative of the town to examine any and all "as built" maps and other records kept or maintained by grantee or under its control concerning the operations, affairs, transactions or property of grantee which are pertinent to the operation of the franchise. If any of such maps or records are not kept in the town, or upon reasonable request made available in the town, and if the town shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by grantee.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-48. Reports required.
The grantee shall file with the town at the end of the grantee's fiscal year unless otherwise specified:
(1) Regulatory communications. Any material filings with the FCC and any technical reports required by the Federal Communications Commission (FCC) including, but not limited to annual proof of performance tests and results and any material filings with any other federal or state regulatory commission or agency, having jurisdiction over any matter affecting operation of grantee's system shall be submitted simultaneously to the town by delivery to the town clerk who shall advise interested town departments of such filing.
(2) Facilities report. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the town. Such report shall also contain any necessary revisions to the system maps filed with the town. Such maps shall provide detailed drawings of where the cable plant is located within the town.
(3) Construction reports. Quarterly construction reports shall be sent to the town until construction is completed as specified in section 6-39(a) and (b) of this chapter.
(4) Proof of performance tests. Proof of performance test results shall be supplied to the town when sections of the system are rebuilt and annually as required in section 7.8(B) [section 6-40(b)] of this chapter.
(5) Tests required by town. Tests required by the town as specified in section 7.8(E) [section 640(b)] of this chapter shall be submitted within thirty (30) days of notification.
(6) Change in service. A report on any change in programming service or channel or other service shall be provided to the town thirty (30) days prior to implementation.
(7) Grantee rules. The grantee's standard schedule of charges, contract or application forms of regular subscriber service policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the grantee's policy in connection with its subscribers shall be filed with the town initially and thereafter if any change is implemented and conspicuously posted in the grantee's local office. All such terms and conditions, including schedule of charges, must have been filed with the town prior to their implementation. Such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable state and federal laws, rules or regulations.
(8) Proof of bonds, letter of credit and insurance. Grantee shall initially submit to the town any performance bond, letter of credit and certificate of insurance required by this chapter or the franchise and shall also provide written notice of renewal or change in the performance bond, letter of credit or insurance.
(9) Financial and ownership reports. The following financial reports for the franchise area shall be submitted annually to the town:
(a) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the franchise of ten (10) per cent or more.
(b) If the town has the authority to regulate rates and requests it, the grantee shall provide a fully audited financial statement certified by a certified public accountant, from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non-subscriber revenue, line item operating expenses, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule.
(c) An initial list of the officers and members of the board of directors of grantee and of any parent corporation and notification of any changes.
(10) Franchise fee report. An audited report prepared in accordance with generally accepted accounting principles on the grantee's gross revenues detailed by category and franchise fees for the period July 1 to June 30, shall be provided to the town annually by August 15 with certification by a certified public accountant.
(11) Operational reports. The following system and operational reports shall be submitted annually to the town:
(a) An annual summary of the previous year's activities including, but not limited to, subscriber totals for each category of service offered, new services offered, and the amount collected annually from other users of the system and the character and extent of the service rendered thereto.
(b) An annual summary of complaints received and handled in addition to any reports required in the franchise.
(c) An annual description of system and service plans for the next fiscal year.
(12) Additional reports. The grantee shall prepare and furnish to the town at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the town in connection with this chapter or the franchise.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-49. Records required.
(a) Mandatory records. The grantee shall at all times maintain:
(1) A record of all complaints received and interruptions of service experience for the preceding period prior to a performance review.
(2) A full and complete set of plans, records and "as built" maps showing the exact location of all cable communication system equipment installed or in use in the town, exclusive of subscriber service drops.
(b) Other records. The town may impose reasonable requests for additional information, records and documents from time to time.
(Ord. No. 88-31, § 2, 11-17-88)
ARTICLE VIII. MISCELLANEOUS PROVISIONS
Sec. 6-50. Public notice.
Public notice shall be provided as required by state law.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-51. Captions.
The captions to sections throughout this proposal are intended solely to facilitate reading and reference to the sections and provisions of this proposal. Such captions shall not affect the meaning or interpretation of this proposal.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-52. Franchise applications.
(a) Applicants for a franchise or OVS license shall submit to the town a written application utilizing the standard format provided by the town, at the time and place designated by the town for accepting applications. The application shall be complete and shall include all applicable fees.
.
(b) In awarding a franchise, the Town shall allow the applicant's cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area and may require adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; and qualifications to provide cable service.
(c) A fee in the amount of $7,000 shall be paid by each applicant at the time of application for franchise which fee shall be in the form of cash, certified check, or money order to defer the cost of studying, investigating, and otherwise processing such application and which shall be in consideration thereof and not refundable or returnable in whole or in part. To offset the effects of inflation, the amount of the fee provided for herein, is subject to reasonable increase in accord with the annual rate of inflation. Per the CPI.
(Ord. No. 88-31, § 2, 11-17-88)
Sec. 6-53. Remedies.
(a) For the violation of any of the following provisions of a franchise or this Ordinance, the Town shall act so as to notify Franchisee in writing of the violation. Such liquidated damages may be chargeable to the Performance Bond. Franchisee may petition the Town Council for relief with just cause. These liquidated damages shall be in addition to and not a limitation upon the other penal provisions of the Town Code of Ordinance or other applicable law, including revocation, or other statutorily or judicially imposed penalties. No decision by the Town to invoke any remedy under the franchise, the Ordinance, or any statute, law or Ordinance, shall preclude the availability of any other such remedy. Liquidated damages shall begin to accrue as follows:
(1) Failure, unless beyond Franchisee’s control and or the affected subscriber is unavailable, to correct outages for any or all subscribers within one week . . . . $250 per day up to $2,500 per month in the aggregate beginning two (2) business days from the receipt of notice from the Town.
(2) Failure to restore damaged property to better or original condition…..$500 per day plus cost of restoration if not completed within ten (10) business days from receipt of notice from the Town.
(3) Failure to bury drops or other cables within ten (10) business days as outlined in the franchise…$500 per day from two (2) business days after the date of notice by the Town.
(4) Failure to timely file the annual audited financial report, as required in the Ordinance . . . . $100 per day from date due until filed.
(5) Failure to complete system construction or conversion as outlined in the franchise . . . .$250 per day, up to $5,000 per month.
(6) Failure to complete all plant extensions as required by this franchise . . . $100 per day beginning two (2) business days from receipt of notice from the Town.
(7) Failure to resolve multiple similar unresolved customer complaints, unless beyond the Franchisee’s control . . . . $500 per day in the aggregate beginning two (2) business days from receipt of notice from the Town.
(8) Failure to remove or relocate affected cable system before construction begins due to change in street grade or lines or water/wastewater/storm water lines . . . $500 per day beginning two (2) business days from receipt of notice from the Town.
(9) Failure to comply with the material provisions of the Ordinance, franchise, or applicable state or federal law . . . . $500 per day beginning two (2) business days from receipt of notice from the Town.
(b) The Town retains the right to reduce or waive any of the above-listed liquidated damages.
(Ord. No. 88-31, § 2, 11-17-88)