HomeMy WebLinkAbout023833 ORD - 11/09/1999AN ORDINANCE
ESTABLISHING A MASTER CABLE SERVICES REGULATORY
ORDINANCE GOVERNING USE OF CITY STREETS, LANES, AVENUES,
ALLEYS, SIDEWALKS, BRIDGES, RIGHTS OF WAY, EASEMENTS,
HIGHWAYS, AND OTHER PLACES IN THE CITY OF CORPUS CHRISTI
TEXAS, AND PROVIDING FOR PUBLICATION.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI, TEXAS:
SECTION L That the City Council hereby approves the attached Master Cable Services
Regulatory Ordinance governing use of city streets. lanes, avenues. alleys, sidewalks, bridges, rights-
of-way, easements, highways and other places in the City of Corpus Christi, Texas by providers of
certain cable services.
SECTION 2. Publication will be made in the official publication of the City of Corpus
Christi as required by the City Charter of the City of Corpus Christi.
LOA\ord2. 1 18
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That the foregoing ordinance was read for the first time and passed to its second reading on this theOva' day
of
this`-^ ,
, by the following vote:
Samuel L. Neal • Betty Jean Longoria
Javier D. Colmenero I , John Longoria
Melody Cooper [u*4! Rex A. Kinnison
Henry Garrett Mark Scott
Dr. Arnold Gonzales
That the foregoing ordinance was read for the second time and passed finally on this the
'flJ t &4JC t , 19 on, by the following vote:
Samuel L. Neal
Javier D. Colmenero
Melody Cooper
Henry Garrett
Dr. Arnold Gonzales
Betty Jean Longoria
John Longoria
Rex A. Kinnison
Mark Scott
PASSED AND APPROVED, this the day of
ATTEST:
City Secretary
day of
MAYOR
THE CITY OF CORPUS CHRISTI
APPROVED: )- DAY OF C1k-919-47 19`I .
JAMES R. BRAY, JR., CITY ATTORNEY
By:
Lisa Aguilar
Assistant City Attorney
LOA \ord2.118
11 I)/'1 nr?rl
• (..y C) J
MASTER CABLE SERVICES REGULATORY ORDINANCE
CITY OF CORPUS CHRISTI, TEXAS
MASTER CABLE SERVICES
REGULATORY ORDINANCE
MASTER CABLE SERVICES REGULATORY ORDINANCE
TABLE OF CONTENTS
Page
ARTICLE 1. STATEMENT OF INTENT AND PURPOSE 1
1.1 Statement of Intent and Purpose. 1
ARTICLE 2. SHORT TITLE 2
ARTICLE 3. DEFINITIONS 2
3.1 "Basic Cable Service" 2
3.2 "Cable Act" 2
3.3 "Cable Internet Service" 3
3.4 "Cable Service" or "Service" 3
3.5 "Cable Television System" or "Cable System" 3
3.6 "Capital Contribution" 4
3.7 "Capital Costs" 4
3.8 "Channel" 4
3.9 "City" 4
3.10 "Class IV Cable Communications Channel" 4
3.11 "Community Access Corporation" 4
3.12 "Complaint" 4
3.13 "Converter" 5
3.14 "Council" 5
3.15 "Direct Incremental Costs" 5
3.16 "Drop" 5
3.17 "Educational Access Channels" 5
3.18 "Effective Date" 5
3.19 "FCC" 5
3.20 "Franchise" 5
3.21 "Franchise Agreement" 6
3.22 "Franchise Area" 6
3.23 "Franchise Fee" 6
3.24 "Government Access Channels" 6
3.25 "Grantee" 7
3.26 "Grantor" 7
3.27 "Gross Revenues 7
3.28 "Incumbent Grantee" 7
3.29 "Institutional Network" or I -Net 7
3.30 "Institutional Network Services" 8
3.31 "Lockout Device" 8
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MASTER CABLE SERVICES REGULATORY ORDINANCE
3.32 "Municipal Telecommunications Consent Fee" 9
3.33 "Non -Commercial" 9
3.34 "Normal Business Hours" 9
3.35 "Normal Operating Conditions" 9
3.36 "Other Programming Service" 9
3.37 "Person" 10
3.38 "Public Access Channels" 10
3.39 "Resident" 10
3.40 "Right -of -Way" 10
3.41 "Service Interruption 10
3.42 "Standard Installation" 10
3.43 "Subscriber" 11
3.44 "System" 11
ARTICLE 4. FRANCHISE REQUIREMENTS 10
4.1 Unlawful to Operate Without a Franchise. 10
4.2 Franchises Non -Exclusive. 10
4.3 Franchises Non -Discriminatory. 12
4.4 Franchise Territory 12
4.5 Term of the Franchise. 12
4.6 Federal, State, and City Jurisdiction. 12
4.7 Rights Reserved To Grantor 14
4.8 Franchise Agreement. 15
4.9 Initial Franchise Applications. 16
4.10 Consideration of Initial Applications 17
4.11 Franchise Renewal. 18
4.12 Grant of Additional Franchise and Competing Service. 18
4.13 Permits for Non -Franchised Entities 20
4.14 Competition Review. 19
ARTICLE 5. DESIGN PROVISIONS 20
5.1 System Design. 20
5.2 The System 22
5.3 Drops to Public Buildings 22
5.4 Use of Grantee Facilities 23
5.5 Upgrade of System 23
5.6 Non -Discriminatory Access To Cable System. 23
ARTICLE 6. INSTITUTIONAL NETWORK, AND PUBLIC EDUCATIONAL AND
GOVERNMENTAL ACCESS 25
6.1 Institutional Network, Access Channels 25
6.2 Proof of Performance Testing. 26
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MASTER CABLE SERVICES REGULATORY ORDINANCE
ARTICLE 7. TECHNICAL STANDARDS AND CUSTOMER SERVICE PRACTICES 26
7.1 General Technical Standards and Customer Service Practices 26
7.2 Technical Standards. 27
7.3 Test and Compliance Procedure. 27
7.4 Emergency Requirements. 27
7.5 Programming Decisions 28
7.6 Cable System Office Hours and Telephone Availability 28
7.7 Service Calls and Installations 32
7.8 Repairs and Interruptions 35
7.9 Disconnections, Downgrades and Refunds 39
7.10 Communications Between Grantees and Subscribers 42
7.11 Complaint Log. 46
7.12 Parental Control 47
7.13 Periodic Subscriber Survey 47
7.14 Service Area 47
7.15 Customer Service Reporting Requirements 48
7.16 City Monitoring. 49
ARTICLE 8. CONSTRUCTION STANDARDS 46
8.1 Right -of -Way Construction. 46
8.2 Compliance with Laws. 46
8.3 Minimum Interference. 47
8.4 Repair of Property 47
8.5 Erection of Poles Prohibited. 47
8.6 Reservations of Street Rights 48
8.7 Underground Installation. 52
8.8 Conduit
8.9 Clearing Poles and Cables. 53
8.10 Moving Facilities. 53
8.11 Work Performed by Others 54
8.12 Duty to Grantee 54
ARTICLE 9. OPERATION AND MAINTENANCE 55
9.1 Open Books and Records 55
9.2 Communications with Regulatory Agencies. 55
9.3 Annual Reports. 56
9.4 Additional Reports. 57
9.5 Strand -and -Trench Maps 57
9.6 Service Contract and Subscriber Information 57
ARTICLE 10. GENERAL FINANCIAL AND INSURANCE PROVISIONS 54
10.1 Franchise Fee. 54
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MASTER CABLE SERVICES REGULATORY ORDINANCE
10.2 Security Fund. 56
10.3 Penalties Procedure. 56
10.4 Bonds, Indemnification, and Insurance 62
ARTICLE 11. REVOCATION 62
11.1 Grounds for Revocation. 62
11.2 Procedure. 63
ARTICLE 12. FORECLOSURE, RECEIVERSHIP AND ABANDONMENT 64
12.1 Foreclosure 64
12.2 Receivership 64
ARTICLE 13. PURCHASE OF SYSTEM 65
13.1 Grantor's Right to Purchase System upon Receipt By Grantee of a Bona Fide
Offer. 65
13.2 Purchase By Grantor Upon Termination of Franchise Term or Revocation of
Franchise. 65
ARTICLE 14. SALE OR TRANSFER 66
14.1 Sale or Transfer of Franchise. 66
ARTICLE 15. RIGHTS OF INDIVIDUALS PROTECTED 68
15.1 Discriminatory Practices Prohibited. 68
15.2 Subscriber Privacy. 68
ARTICLE 16. MISCELLANEOUS PROVISIONS 68
16.1 Rate Regulation 68
16.2 Rights Reserved to Grantor 64
16.3 Administration of Franchise. 65
16.4 Nonenforcement by the City. 65
16.5 Governing Law and Choice of Forum. 65
16.6 Severability. 65
16.7 Publication of Notices 70
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MASTER CABLE SERVICES REGULATORY ORDINANCE
ORDINANCE NO.
ARTICLE 1. STATEMENT OF INTENT AND PURPOSE
1.1 Statement of Intent and Purpose.
A. The City of Corpus Christi, Texas, pursuant to applicable federal and State law, is
authorized to grant one or more nonexclusive Franchises to construct, operate,
maintain, and reconstruct Cable Systems within the City.
B. The City Council of Corpus Christi finds that Cable Service has become an
integral part of its citizens' lives, and that evolving Cable Systems have the
potential to play an even more dramatic role in the future, providing great benefits
and advanced capabilities to the City. At the same time, The Council further finds
that the public convenience, safety, and general welfare can best be served by
establishing regulatory powers that are vested in the City or such Persons as the
City designates.
C. In order to ensure that the City and its Residents receive state of the art Cable
Services and capabilities as this technology further evolves, all Franchises granted
pursuant to this Ordinance will be subject to periodic review and modifications to
keep current with changing law, technology, and Services. It is the intent of this
Ordinance to help ensure that local cable operators provide the best possible
Cable Service to Residents of the City and any Franchises issued pursuant to this
Ordinance shall be deemed to include this finding as an integral part thereof.
D. The Council further finds that on-going industry consolidation could result in less
local accountability, and that therefore stringent customer service standards,
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MASTER CABLE SERVICES REGULATORY ORDINANCE
including liquidated damage provisions, may be the only practical means of
ensuring compliance and approximating the costs of Franchise Agreement non-
compliance to the City and its Residents.
ARTICLE 2. SHORT TITLE
This Ordinance shall be known and may be cited as the "City of Corpus Christi Master
Cable Services Regulatory Ordinance."
ARTICLE 3. DEFINITIONS
For the purpose of this Ordinance, the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
used in the present tense include the future tense, words in the plural number include the singular
number, and words in the singular number include the plural number. The words "shall" and
"will" are mandatory and "may" is permissive. Words not defined shall be given their common
and ordinary meaning.
3.1 "Basic Cable Service" means any Cable Service tier that includes the lawful
retransmission of local television broadcast signals and any Public, Educational, and
Governmental Access programming required by this Ordinance or a Franchise Agreement
to be carried on the basic tier. Basic Cable Service as defined herein shall be consistent
with 47 U.S.C. § 543(b)(7) (1997).
3.2 "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549,
(codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable
Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and
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MASTER CABLE SERVICES REGULATORY ORDINANCE
the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as may, from time to
time, be amended.
3.3 "Cable Internet Service" means any Cable Service offered by a Grantee whereby Persons
receive access to the Internet through the Cable System.
3.4 "Cable Service" or "Service" means:
A. The one-way transmission to subscribers of (i) video programming, (ii) other
programming service; or (iii) other Services agreed to in a Franchise Agreement
unless lawfully determined not to be a Cable Service.
B. Subscriber interaction, if any, which is required for the selection or use of such
video programming or other programming service; and
C. For purposes of this Ordinance, unless determined otherwise under applicable
federal law, Cable Internet Service shall be considered Cable Service.
3.5 "Cable Television System" or "Cable System" means a facility, consisting of a set of
closed transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service to multiple Subscribers within the
Franchise Area, but such term does not include:
A. A facility that serves only to retransmit the television signals of one or more
television broadcast stations;
B. A facility that serves Subscribers without using any public Right -of -Way; or
C. A facility of a common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. §§ 201-226, except that such facility shall be considered a
Cable System to the extent such facility, whether on a common carrier basis or
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MASTER CABLE SERVICES REGULATORY ORDINANCE
otherwise, is used in the transmission of video programming directly to
Subscribers
3.6 "Capital Contribution" means a contribution provided by a Grantee as determined in a
Franchise Agreement that may at the City's discretion be utilized for the Capital Costs of
the municipal access channel facilities, or to help defray the costs of an I -Net.
3.7 "Capital Costs" means costs associated with the purchase of assets, products or other
resources that are designed to provide Service for more than one year.
3.8 "Channel" means a portion of the electromagnetic spectrum [or fiber optic capacity] that
is capable of carrying one standard six (6) megahertz video signal, in either analog or
digital form. Consistent with future changes in technology and/or applicable law, the
parties may mutually agree to a different definition in an individual Franchise Agreement.
3.9 "City" means the City of Corpus Christi, Texas.
3.10 "Class IV Cable Communications Channel" means a signaling path provided by a Cable
System to transmit signals of any type from a Subscriber terminal to another point in the
System.
3.11 "Community Access Corporation" or "CAC" means a non-profit Access Corporation
serving the City, its assignees or delegees, or any other entity designated by the Grantor
whose duties shall include the financing, management, and programming of Public and
Educational Access, and whatever other duties with respect to the PEG Access Channels
that the Grantor from time to time may delegate.
3.12 "Complaint" means any oral, written or electronic inquiry, allegation, or assertion, made
by a Person regarding Service.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
3.13 "Converter" means an electronic device that converts signals to a frequency not
susceptible to interference within the television receiver of a Subscriber and, through the
use of an appropriate Channel selector, permits a Subscriber to view all authorized
Subscriber signals delivered at designated converter dial locations.
3.14 "Council" means the City Council of Corpus Christi, Texas.
3.15 "Direct Incremental Costs" means the costs actually incurred by Grantee in meeting an
obligation under its Franchise which Grantee would not otherwise have incurred in order
to either operate and conduct the business of its Cable System or meet another obligation
of the Franchise.
3.16 "Drop" means the cable or cables that connect users of the System to the distribution
system in order to receive Service.
3.17 "Educational Access Channels" means Channels specially designated for Non -
Commercial educational access progranuning use.
3.18 "Effective Date" means the date a Franchise becomes effective in accordance with the
Franchise and the rules and procedures of the City.
3.19 "FCC" means the Federal Communications Commission or a designated representative.
3.20 "Franchise" means the rights and obligations extended by the City to a Person to own,
" lease, construct, maintain, or operate a Cable System in the Right -of -Way within the
Franchise Area for the purpose of providing Cable Services. Any such authorization, in
whatever form granted, shall not mean or include: (i) any other permit or authorization
required for the privilege of transacting and carrying on a business within the City
required by the ordinances and laws of the City; (ii) any permit, agreement, or
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MASTER CABLE SERVICES REGULATORY ORDINANCE
authorization required in connection with operations in the Right -of -Way including,
without limitation, permits and agreements for placing devices on or in poles, conduits, or
other structures, whether owned by the City or a private entity, or for excavating or
performing other work in or along the Right -of -Way.
3.21 "Franchise Agreement" means a Franchise granted pursuant to this Ordinance.
3.22 "Franchise Area" means the entire geographic area within the City as it is now constituted
or may in the future be constituted.
3.23 "Franchise Fee" means any tax, fee, or assessment of any kind imposed by the City or
other governmental entity on a Grantee solely because of its status and activities as such.
The term "Franchise Fee" does not include: (i) any tax, fee, or assessment of general
applicability (including any such tax, fee, or assessment imposed on both utilities and
cable operators or their Services but not including a tax, fee, or assessment that is unduly
discriminatory against cable operators or cable Subscribers); (ii) capital costs that are
required by a Franchise Agreement to be incurred by a Grantee for PEG Access
equipment and facilities; (iii) costs associated with the construction and operation of an I -
Net; (iv) requirements or charges incidental to the award or enforcement of a Franchise,
including payments for bonds, security funds, letters of credit, insurance, indemnification,
compliance audits, penalties, or liquidated damages; (v) any fee imposed under Title 17
of the United States Code; or (vi) any generally applicable Right -of -Way fee imposed by
the City on the Grantee as a telecommunications provider pursuant to Title 9, Chapter
283 of the Texas Local Government Code, or other applicable law.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
3.24 "Government Access Channels" means Channels specially designated for non-
commercial governmental access programming use.
3.25 "Grantee" means a Person who is granted a Franchise or that Person's lawful successors,
transferees, or assignees.
3.26 "Grantor" means the City or its delegates.
3.27 "Gross Revenues" means any revenue derived directly or indirectly by a Grantee from the
operation of its Cable System to provide Cable Service, within the Franchise Area,
including revenues received by its affiliates, subsidiaries, parent, or any other Person, in
which a Grantee has a financial interest of five percent (5%) or more, where such revenue
in the ordinary course of business should have been paid to Grantee. By way of
illustration and not limitation, this definition would include revenue derived from the sale
of Cable System advertising time by an Affiliate of Grantee. Gross Revenues shall
include but are not limited to, pay cable fees, installation and reconnection fees, Franchise
Fees collected from Subscribers, leased channel access fees, Converter rentals, fees for
Cable Internet Service (unless it is determined by applicable law that it is not a Cable
Service), home shopping revenues, all Cable service lease payments from the Cable
System; payments or other consideration received by the Grantee from programmers for
carriage of programming on the Cable System and accounted for as revenue under
GAAP; and advertising revenues. The term does not include taxes on Services furnished
by a Grantee and imposed directly upon any Subscriber or user by federal, state, or local
law and collected by Grantee on behalf of such governmental unit, or amounts collected
from subscribers for public, educational and government access. Nor does the term
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MASTER CABLE SERVICES REGULATORY ORDINANCE
include any revenues earned by the Grantee through the provision of telecommunications
services as defined under the Telecommunications Act of 1996.
3.28 "Incumbent Grantee " means a cable operator that has been granted a Franchise by the
City prior to the effective date of this Ordinance.
3.29 "Institutional Network" or "I -Net" means capacity, fibers or both, from both within the
primary cable network and/or separately constructed networks that are dedicated to
municipal users or other governmental and educational users as determined by the City
Manager or his/her designee for two-way, broadband communications. The I -Net
includes all equipment and maintenance of equipment required to make the capacity
available including but not limited to fiber, cable modems, coaxial cable, switching,
routing, transmitting and receiving equipment necessary for the use of the network as
determined in the individual Franchise Agreement.
3.30 "Institutional Network Services" means the provision of an I -Net by a Grantee to
municipal users and other governmental and educational users as determined by the City
Manager or his/her designee, pursuant to the terms of a Franchise Agreement for non-
commercial applications including but not limited to, two-way dedicated voice, data,
video, Internet and telephony channels connecting and interconnecting user facilities;
computerized traffic control systems; Supervisory Control and Data Acquisition
(SCADA) or automatic meter reading (AMR) systems for municipally -owned utilities;
and the interconnection of facilities serving police, fire and other public safety systems..
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MASTER CABLE SERVICES REGULATORY ORDINANCE
3.31 "Lockout Device" means a mechanical or electrical accessory to a Subscriber's terminal
that inhibits the video or audio portions of a certain program or certain Channel(s)
provided by way of a Cable System.
3.32 "Municipal Telecommunications Consent Fee" means a fee assessed on a
telecommunications provider for the use of the City's Rights -of -Way pursuant to Title 9,
Chapter 283 of the Texas Local Government Code, or other applicable law.
3.33 "Non -Commercial" means Channels or programming that are operated on a not-for-profit
basis.
3.34 "Normal Business Hours" means those hours during which most similar businesses in the
community are open to serve customers. In all cases, Normal Business Hours must
include some evening hours, at least one night per week, and some weekend hours.
3.35 "Normal Operating Conditions" means any and all situations or conditions that are
ordinarily within the control of a Grantee, including but not limited to, management or
corporate decisions; employee conduct; staffing levels; special promotions; pay-per-view
events; rate increases; regular peak or seasonal demand periods; electronic and video
equipment; maintenance, repair or upgrade of the Cable System, and any associated
computer or software systems. Those conditions that are not within the control of a
Grantee include, but are not limited to, natural disasters; civil disturbances; power
outages; telephone network outages; and severe or unusual weather conditions.
3.36 "Other Programming Service" means information that a Grantee makes available to all
Subscribers generally.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
3.37 "Person" means any corporation, partnership, proprietorship, individual, organization,
governmental entity or any natural person.
3.38 "Public Access Channels" means Channels specially designated for non-commercial
public access programming use.
3.39 "Resident" means any Person residing in the City.
3.40 "Right -of -Way" means each of the following which have been dedicated to the public or
are hereafter dedicated to the public and maintained under public authority or by others
and located within the City, including without limitation the surface and space within,
above and below any real property in which the City has an interest in law or equity,
whether held in fee, or other estate or interest, or as a trustee for the public, including, but
not limited to any public street, boulevard, road, highway, freeway, lane, alley, court,
sidewalk, parkway, swale, river, tunnel, viaduct, bridge, park, or any other place, area,
easements, rights-of-way and similar public property and areas, or real property owned by
or under the control of the City.
3.41 "Service Interruption" means the loss of picture or sound on one or more Channels on the
System, or the degradation of the picture and/or sound quality on such Channels to the
extent that the Subscriber is unable to use the signals, regardless of the cause, for any
reason whatsoever.
3.42 "Standard Installation" means any Service installation that can be completed using a Drop
of one hundred twenty-five (125) feet or Less, unless otherwise specified in the Franchise
Agreement.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
3.43 "Subscriber" means any Person who or which elects to subscribe for any purpose to
Cable Service provided by a Grantee by means of, or in connection with, the Cable
System, and whose premises or facilities are physically wired and lawfully activated to
receive Cable Service from Grantee's Cable System, including Persons who receive
Cable Service without charge according to the terms of the Franchise Agreement.
3.44 "System" means a Grantee's Cable System operated pursuant to a Franchise Agreement
within the Franchise Area.
ARTICLE 4. FRANCHISE REQUIREMENTS
4.1 Unlawful to Operate Without a Franchise.
It shall be unlawful for any Person to construct, operate or maintain a Cable System or to
provide Cable Service in the City without a Franchise. Any such person shall be subject
to a fine of $500 per day. The payment of such fine notwithstanding, all such violators
shall be subject to all other applicable provisions of this Ordinance, including but not
limited to the payment of a Franchise Fee.
4.2 Franchises Non -Exclusive.
Any Franchise granted pursuant to this Ordinance shall be nonexclusive. The Grantor
specifically reserves the right to grant, at any time, such additional Franchises for a Cable
Television System or any component thereof, to any other Person including itself, as it
deems appropriate, subject to applicable federal and State law.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
4.3 Franchises Non-Discriminatorv.
In the event the City grants more than one Franchise or similar authorization for the
construction, operation, or maintenance of any Cable System to a qualified Person in a
Franchise Area, the City's policy shall be to grant the Franchises on terms that are non-
discriminatory and competitively neutral, provided that nothing herein shall be construed
as requiring the use of identical terms or conditions, or limit the enforceability of
conditions that are freely negotiated.
4.4 Franchise Territory.
Any Franchise shall be valid within the entire Franchise Area. Unless a Franchise
Agreement specifically states otherwise, every Franchise shall apply to the entire territorial
area of the City.
4.5 Term of the Franchise.
A Franchise Agreement shall establish the term of Franchise. A Franchise Agreement
may provide for a term of up to fifteen (15) years.
4.6 Federal, State, and City Jurisdiction.
A. This Ordinance shall be construed in a manner consistent with all applicable
federal and State laws.
13. In the event that the federal or State government discontinues preemption in any
area of cable communications over which it currently exercises jurisdiction in
such manner as to expand rather than limit municipal regulatory authority,
Grantor may, if it so elects, adopt rules and regulations in these areas to the extent
permitted by law.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
C. Grantee's rights are subject to the police powers of the City to adopt and enforce
ordinances necessary to the health, safety, and welfare of the public. Grantee
shall comply with all applicable general laws and ordinances enacted by the City
pursuant to that power.
D. The provisions of this Ordinance shall apply to all Franchises granted or renewed
after the effective date of this Ordinance. This Ordinance shall also apply to all
existing Franchises, to the extent not inconsistent with the terms of any such
Franchise or applicable law. In the event of any conflict between the terms and
conditions of a Franchise Agreement and the provisions of this Ordinance, and
other generally applicable regulatory ordinances of the City, the specific terms of
the Franchise Agreement shall control. A Franchise Agreement (including all of
Grantee's particular rights, powers, protections, privileges, immunities and
obligations associated therewith as the same exist on the date hereof) shall
constitute a legally binding contract between the City and Grantee, and as such,
cannot be amended, modified or changed by the City without the consent of
Grantee in any manner whatsoever, whether by ordinance, rule, regulation or
otherwise, to impose on Grantee more stringent or burdensome requirements or
conditions; provided, however, that nothing herein contained shall preclude the
City from the proper exercise of its police powers, or its powers of eminent
domain.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
E. In the event of' a change in state or federal law which by its terms would require
the City to amend this Ordinance, the parties shall modify the existing Franchise
in a mutually agreed upon manner.
F. Grantee shall not be relieved of its obligation to comply with any of the
provisions of this Ordinance or a Franchise Agreement by reason of any failure of
the City to enforce prompt compliance.
4.7 Rights Reserved To Grantor.
A. In addition to any rights specifically reserved to Grantor by this Ordinance or a
Franchise Agreement, Grantor reserves to itself every right and power that is
required to be reserved by a provision of any other ordinance or under any other
Franchise.
B. Grantor shall have the right to waive any provision of this Ordinance or a
Franchise Agreement, except those required by federal or State regulation, if the
Grantor determines: (I) that it is in the public interest to do so and (2) that the
enforcement of such provision will impose an undue hardship on a Grantee or the
Subscribers. To be effective, such waiver shall be evidenced by a statement in
writing signed by a duly authorized representative of Grantor. Waiver of any
provision in one instance shall not be deemed a waiver of such provision
subsequent to such instance, nor be deemed a waiver of any other provision of this
Ordinance or a Franchise Agreement unless the statement in its final form
approved by the City Council so recites.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
4.8 Franchise Agreement.
A. Every Grantee shall agree to the terms and provisions of a Franchise Agreement as
negotiated between the Grantee and the Grantor.
B. In addition to those matters required elsewhere in this Ordinance to be included in
the Franchise Agreement, each Franchise Agreement must contain the following
express representations by each Grantee:
(1) Grantee accepts and agrees to all of the provisions of this Ordinance, as it
exists as of the effective date of the Grantee's Franchise Agreement, except
as set forth in Section 4.6, and any supplementary specifications as to
construction, operation, or maintenance of the System which the City may
include in the Franchise Agreement.
(2) Grantee has examined all of the provisions of this Ordinance and agrees to
the terms and conditions herein.
(3) Grantee recognizes the right of the City to adopt such additional regulations
of general applicability as it shall find necessary in the exercise of its police
power.
C. Every Franchise Agreement shall contain such further conditions or provisions as
may be negotiated between the City and a Grantee, except that no such conditions or
provisions shall be such as to conflict with any provisions of state or federal law.
In case of any conflict or of any ambiguity between any terms or provisions of a
Franchise Agreement and this Ordinance, the provisions of the Franchise
Agreement shall control.
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4.9 Initial Franchise Applications.
Any Person desiring an initial Franchise for a Cable System shall file an application with
the City. A reasonable nonrefundable application fee established by the City shall
accompany the application or renewal application. Such application fee shall not be
deemed to be "Franchise Fees" within the meaning of Section 622 of the Cable Act (47
U.S.C. § 542), and such payments shall not be deemed to be (i) "payments in kind" or
any involuntary payments chargeable against the compensation to be paid to the City by
Grantee, or (ii) part of the compensation to be paid to the City by Grantee pursuant to this
Ordinance or a Franchise Agreement. An application for an initial Franchise for a Cable
Television System shall contain, where applicable:
A. A statement as to the proposed Franchise Area;
B. Resume of prior history of applicant, including the legal, technical, and financial
expertise of applicant in the cable television field;
C. List of the partners, general and limited, of the applicant, if a partnership, or the
percentage of stock owned or controlled by each shareholder, if a corporation;
D. List of officers, directors, and managing employees of applicant, together with a
description of the background of each such Person;
E The names and addresses of any parent or subsidiary of applicant or any other business
entity owning or controlling applicant in whole or in part, or owned or controlled in
whole or in part by applicant;
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F. A current financial statement of applicant verified by a CPA audit or otherwise
certified to be true, complete, and correct to the reasonable satisfaction of the City;
G. Proposed construction and Service schedule; and
14. Any additional information that the City may require for the administration of the
Franchise.
4.10 Consideration of Initial Applications.
A. Upon receipt of any application and application fee for an initial Franchise, the City
Administrator shall prepare a report and make his or her recommendations respecting
such application to the City Council.
B. A public hearing may be held prior to any initial Franchise grant, at a time and date
approved by the Council. Within thirty (30) days after the close of the hearing, the
Council shall make a decision based upon the evidence received at the hearing as to
whether or not the Franchise(s) should be granted, and, if granted, subject to what
conditions.
C. All applicants for an initial Franchise grant shall submit an application fee of twenty
thousand dollars ($20,000) to compensate the City for its costs in reviewing, preparing
and awarding a Franchise, including the costs of outside consultants. Upon grant of a
Franchise the City may request the payment of an additional fee to the extent that the
reasonable costs of the franchise review and negotiation process exceed the initial
application fee amount. Consistent with the Cable Act, all such fees shall not
constitute or be credited towards a Grantee's Franchise Fee obligations.
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4.11 Franchise Renewal.
Franchise renewals shall be in accordance with applicable law including, but not necessarily
limited to, the Cable Communications Policy Act of 1984, as amended. Grantor and a
Grantee, by mutual consent, may enter into renewal negotiations at any time during the term
of the Franchise. Franchise renewal may also arise if there are substantial changes to the
contractual relationship between the Grantor and the Grantee. As a Franchise Renewal
Agreement shall constitute a new Franchise Agreement, the City reserves the right, unless
prohibited by applicable law, to require a Grantee to pay the reasonable costs of the franchise
renewal and negotiation process.
4.12 Grant of Additional Franchise and Competing Service.
A. Since competing or overlapping Franchises may have an adverse impact on the
public Rights -Of -Way, on the quality and availability of Services to the public
and may adversely affect an existing operator's ability to continue to provide the
Services and facilities it is presently providing under a Franchise, in granting a
franchise in an area where another Grantee is operating the City may consider the
potential impact which the grant of an additional Franchise may have on the
community. This determination may be made simultaneously with the adoption
of the Grantee's Franchise Agreement. In considering whether to grant one or
more additional Franchises, the City shall specifically consider, and address in a
written report or in provisions of the Franchise Agreement, the following issues:
(1) The positive and/or negative impact of an additional Franchise on the
community.
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(2) The ability and willingness of the specific applicant in question to provide
Cable Services to the entire Franchise Area which is served by the existing
cable operator. The purpose of this subsection is to ensure that any
competition which may occur among Grantees will be on terms which
when taken as a whole do not give a competitive advantage to one Grantee
over another.
(3) The amount of time it will take the applicant to complete construction of
the proposed System and activate Service in the entire Franchise Area;
and, whether the applicant can complete construction and activation of its
System in a timely manner.
(4) The financial capabilities of the applicant and its guaranteed commitment
to make the necessary investment to erect, maintain, and operate the
proposed Cable System for the duration of the Franchise term. In order to
ensure that any prospective Grantee does have the requisite current
financial capabilities, the City may request equity and debt financing
commitment letters, current audited financial statements, bonds, letters of
credit, or other documentation to demonstrate to the City's satisfaction that
the requisite funds to construct and operate the proposed System are
available.
(5) The quality and technical reliability of the proposed System, based upon
the applicant's plan of construction and the method of distribution of
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signals, and the applicant's technical qualifications to construct and
operate such System.
(6) The experience of the applicant in the erection, maintenance, and
operation of a Cable Television System.
(7) The capacity of the public Rights -Of -Way to accommodate one or more
additional Cable Systems and the potential disruption of those public
Rights -Of -Way and private property that may occur if one or more
additional Franchises are granted.
(8) The disruption of existing Cable Service and the potential that the
proposed Franchise would adversely affect the Residents of the City.
(9) The likelihood and ability of the applicant to continue to provide
competing Cable Service to Subscribers within the entire Franchise Area
for the duration of the Franchise.
(10) Such other information as the City may deem appropriate to be considered
prior to granting any competing or overlapping Franchise.
4.13 Permits for Non -Franchised Entities.
A. The City may issue a license, easement, or other permit to a person other than the
Grantee to permit that person to traverse any portion of the Grantee's Franchise
Area within the City in order to provide Service outside, but not within the City.
Such license or easement, absent a grant of a Franchise in accordance with this
Ordinance, shall not authorize nor permit said person to provide Cable Service of
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any type to any home or place of business within the City nor render any other
Service within the City.
B. Such license, easement or permit shall require the payment of fee for occupancy
of the public Right Of Way to the extent permitted by applicable law.
4.14 Review for Competition
A. The City recognizes that the cable television and telecommunications industries
are in a period of convergence and that the technologies and services provided by
these industries are rapidly changing, and that the Telecommunications Act of
1996 promoted and encouraged competition between and among these formally
discrete industries. At this time it is premature to know fully the extent to which
there will be changes in law, technology or services that may impact entities that
have been or may be granted Franchises or licenses to use the City's Rights -Of -
Way. It is the desire of the City to be a communications friendly city, that
encourages the development of competitive advanced communications
capabilities for the benefit of all its citizens, for this reason the regulatory
ordinances and Franchises of the City should not impede or restrict the fair
opportunity to compete, but rather are intended to provide uniform and consistent
requirements for all similarly situated providers.
B. Consistent with the above findings, the City Manager or designate, is authorized
to undertake an on-going evaluation and study of these changing and emerging
technologies and services, as well as legal requirements relating to them, and upon
request by the City, submit a report to the City regarding the impact of this
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Ordinance and its impact on existing providers within the City and the
development of competition.
ARTICLE 5. DESIGN PROVISIONS
5.1 System Design.
A. Every Grantee shall offer Service that meets the current and future needs of the
City. The Franchise Agreement shall incorporate a description of the Grantee's
proposal including the general design and capabilities of the System to identify
for the City how the System will meet the current and future Cable needs of the
City.
B. Periodic Review. The Franchise Agreement shall include provisions to provide
for a "periodic review" between the City and a Grantee to evaluate changes in
law, technology, or service, and reasonable procedures for mutually agreed upon
modifications to the Franchise Agreement to incorporate changes identified as
desirable or necessary as a result of any such periodic review.
5.2 The System.
Every System shall pass by every single-family dwelling unit and multiple -family
dwelling unit within the Franchise Area in accordance with line extension policies set
forth in the applicable Franchise Agreement. Service shall be provided to Subscribers in
accordance with the schedules and line extension policies specified in the applicable
Franchise Agreement.
5.3 Drops to Public Buildings.
A. Every Grantee shall provide installation of at least one (1) cable Drop, and one (1)
outlet, provide monthly Basic Cable Service, without charge, to public buildings
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as specified by the Franchise Agreement, irrespective of the distance of the drop.
Specific requirements with respect to such drops shall be included in individual
Franchise Agreements.
B. All such Cable Service outlets shall not be utilized for commercial purposes. The
City shall take reasonable precautions to prevent any use of the Grantee's cable
system in any inappropriate manner or that may result in loss or damage to the
system. Users of such outlets shall hold the Grantee harmless from any and all
liability or claims arising out of their use of such outlets, other than for those
claims arising out of improper installation or faulty equipment.
5.4 Use of Grantee Facilities.
The Franchise Agreement shall incorporate provisions regarding the City's use of a
Grantee's poles, ducts and conduits, on mutually agreed upon terms.
5.5 Upgrade of System.
Every Grantee shall upgrade its System (herein referred to as the "System Upgrade"), if
required, as set forth in its respective Franchise Agreement.
5.6 Non -Discriminatory Access To Cable System.
A. The City and its Residents have an increasing need and desire for broadband
access to the Internet and other on-line Services.
B. In order to protect competition and provide for the future needs of the City, unless
otherwise required by applicable state or federal law, the Grantor reserves any
legal right it now has, or may in the future have, to implement an "open access"
requirement to ensure that a Grantee will be required to provide non -
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discriminatory access to its Cable System to providers of Internet Access Service,
irrespective of whether such providers are affiliated with the Grantee. A Grantee
may be required, if legally permissible, to implement "open access" requirements
to its Cable System to non-affiliated Internet Access Service providers if the
Grantee or its affiliates or subsidiaries under its control determine to do so in a
similar manner in other Cable Systems owned and operated by the Grantee or its
affiliates or subsidiaries under its control.
C. The foregoing notwithstanding, it is recognized that "open access" and the legal
authority of local franchise authorities to compel such access is under review, and
the potential impact on Subscribers is not yet fully known. Accordingly,
Grantees will not be required to provide non-discriminatory access to their Cable
System until further review by the Grantor and pending clarification of the City's
legal authority, as well as an evaluation by the City of the merits and policy
considerations related to this issue. By adopting this Ordinance, neither the City
nor any Grantee has waived any rights, obligations, claims, defenses or remedies
regarding the city's authority to impose such conditions. Prior to the enactment of
any such requirement, a Grantee will be provided with reasonable notice and an
opportunity to be heard, including the right to present evidence on any findings to
be made by the City with respect to the need for such a requirement.
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ARTICLE 6. INSTITUTIONAL NETWORK, AND PUBLIC EDUCATIONAL AND
GOVERNMENTAL ACCESS OR "PEG ACCESS"
6.1 Institutional Network Access Channels
A. Every Grantee shall, to the extent provided in its Franchise Agreement, make
available capacity from its network or dedicated fibers, or provide other support
for an Institutional Network for governmental and educational use. To the extent
that a Grantee is obligated to provide such support pursuant to its Franchise
Agreement, such obligation will be implemented in a competitively neutral
manner, on a per Subscriber basis with respect to any other Franchises granted
after the adoption of this Ordinance.
B. Every Grantee shall provide a channel or channels, bandwidth capacity, Service,
and funding, for separate Public, Educational and Government Access Channels,
as specified in their Franchise Agreement. All such PEG Access Channels shall
be available to all Subscribers as part of their Basic Cable Service. Every Grantee
shall make a good faith effort to negotiate with other cable providers in the City
and the surrounding area to interconnect its network where feasible in order to
facilitate any requirements with respect to shared access programming on a local
and regional basis. The City reserves the right to negotiate Franchise Agreement
provisions with respect to the uniform cablecasting of PEG Access programming
throughout the entire City without respect to the specific Cable operator.
Oversight and administration of the PEG Access channels shall be set forth in the
Franchise Agreement. The City reserves the right to designate a Community
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Access Corporation or similar entity to administer one or more of the Access
Channels.
6.2 Proof of Performance Testing.
To ensure high quality Service on the Institutional Network and Access Channels, proof
of performance testing throughout the System and on all Channels will be made available
to the City throughout the term of a Franchise Agreement. Every Grantee will monitor
Access Channels throughout the System to determine the level of technical quality of
Access Channels is in conformance with FCC Rules and to ensure that the level of
technical quality on such Channels is the same as on other Channels. A log of such
monitoring shall be maintained by the Grantee, for inspection by the City. In the event
that a Complaint is made by a programmer of any PEG Access Channels, the Grantee
shall immediately investigate the Complaint and determine whether the Grantee is in
compliance with the technical standards set forth in section 7.2 of this Ordinance. The
procedures set forth in section 7.3 of this Ordinance shall apply with respect to technical
testing of Access Channels.
ARTICLE 7. TECHNICAL STANDARDS AND CUSTOMER SERVICE PRACTICES
7.1 General Technical Standards and Customer Service Practices
A. This Ordinance incorporates technical standards and establishes customer service
practices that a Grantee must satisfy. In addition, a Grantee shall satisfy any
additional or stricter requirements established by FCC regulations, or other
federal, state or local law or regulation that may be adopted or amended from time
to time.
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B. A Grantee shall maintain such equipment and keep such records as are required to
enable the Grantor to determine whether the Grantee is in compliance with all
standards required by these regulations and other applicable laws.
7.2 Technical Standards.
The technical standards used in the operation of a System shall comply, at a minimum,
with the technical standards promulgated by the FCC relating to Cable Systems pursuant
to the FCC's rules and regulations and found in Title 47, Sections 76.601 to 76.617, as
may be amended or modified from time to time, which regulations are expressly
incorporated herein by reference. The results of any tests required by the FCC, or a
Franchise Agreement shall be made available to the City within thirty (30) days of
written request.
7.3 Test and Compliance Procedure.
Tests for a System shall be performed periodically in a manner so as to conform with
FCC specifications. The tests may be witnessed by representatives of the City and
written test reports shall be made available to the City. If any test locations fail to meet
the performance standards, the Grantee shall be required to indicate what corrective
measures have been taken and shall have the site retested.
7.4 Emergency Requirements.
Each Grantee must provide emergency alert override capabilities in a manner consistent
with the FCC's emergency alert system ("EAS") rules and consistent with any State
and/or regional emergency alert system plans adopted in response to the FCC's EAS rules
that are applicable to the Franchise Area.
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7.5 Programming Decisions.
Each Grantee shall provide programming from each of the broad programming categories
identified in its Franchise Agreement. All programming decisions remain within the sole
discretion of each Grantee provided that each Grantee complies with federal law
regarding notice to Grantor and Subscribers prior to any Channel additions, deletions, or
realignments, and further subject to the Grantee's signal carriage obligations pursuant to
47 U.S.C. §§ 531-536, as may be amended and subject to the City's rights pursuant to 47
U.S.C. § 545, as may be amended. Grantor may require as part of a Franchise
Agreement that a Grantee conduct and disclose the results of programming surveys, no
more frequently than annually, at the Grantee's sole expense to obtain input on
programming decisions from Subscribers in order to ensure that the Grantee meets the
City's Cable -related needs and interests.
7.6 Cable System Office Hours and Telephone Availability.
A. Every Grantee shall maintain a customer service office within the City, which
shall include a place where subscribers may pay their bills, pick up and return
converter boxes and comparable items and receive information on the Grantee and
its services. Such service office shall be open during Normal Business Hours, and
no Less than nine (9) hours per day on weekdays, including some evening hours,
and four (4) hours on Saturdays. Every Grantee shall also maintain a publicly
listed toll-free or Local telephone line that is available to Subscribers twenty-four
(24) hours a day, seven (7) days a week. The local or toll-free numbers shall be
publicly listed.
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B. Every Grantee shall have trained representatives on hand for walk-in Subscriber
visits and available to respond to Subscriber telephone inquiries during Normal
Business Hours. The term "trained representatives" shall mean employees of the
Grantee who have the authority and capability while speaking with a subscriber
to, among other things, answer billing questions, adjust bills, and schedule service
and installation calls.
C. All employees of the Grantee shall give their name when answering an incoming
call or inquiry, or working in the field. The employee shall provide their
company ID if requested by the Subscriber. Supervisory personnel must use their
best efforts to respond to Subscriber requests to speak with a "manager or
supervisor" within two hours of the request under normal operating conditions,
during normal business hours and supervisory personnel will respond no later than
the following business day.
D. After Normal Business Hours, the telephone access line may be answered by a
service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
representative on the next business day.
E. The Grantee shall prepare and distribute to the Grantor a calendar of holidays and
business days on which the operator will be closed. Grantee shall also provide
notice to Subscribers through answering service/machine, voice mail messages,
bill messages, or through its cable system regarding hours or dates when its
offices will not be open. Such notice shall be provided during the five (5) days
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prior to the date the office will be closed. In addition, during such "closed"
periods, the Grantee shall provide voice messages and notice on its premises of
the emergency and after hours contact numbers.
F. Under Normal Operating Conditions, telephone answer time by a customer
service representative or automated response unit, including wait time, shall not
exceed thirty (30) additional seconds. If a call must be placed on hold or
transferred, the time for response by a human customer service representative
shall not exceed sixty (60) seconds. Under Normal Operating Conditions, these
standards shall be met no less then ninety percent (90%) of the time measured
daily averaged quarterly, and reported at least semi-annually, upon reasonable
request.
G. Under Normal Operating Conditions, Grantee shall establish an inbound
telephone system upon which Subscribers shall not receive a busy signal more
than three percent (3%) of the time.
H. Abandonment rates for incoming calls may not exceed five percent (5%).
I. The period of three (3) hours following major outages (more than 25% of the
Subscribers) or periods of natural disasters are not included in the response
requirements above, provided that when feasible voice -mail information about the
outage has been posted on phone answering equipment and/or the System bulletin
board (assuming outage is not City-wide) and the City has been notified that an
outage was in progress.
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J.
Actions of the Grantee which lead to a high volume of calls (such as incorrect
bills, rate increases, late bills or fees, changes in Service, plant maintenance,
missed appointments, etc.) are considered part of Normal Operating Conditions
and are therefore not exempt from compliance with this Ordinance.
K. Grantee shall respond to all Subscriber or user inquiries or complaints within
seven (7) calendar days of the receipt of inquiry or complaint, except to the
extent a more stringent standard is set forth for specific types of activities,
inquiries or complaints herein or in the Franchise Agreement.
(1) "Response" to the inquiry or complaint shall include correction of bills,
completion of service calls or installations, written responses to Subscriber
correspondence, correction of problems, provision of working converters,
and requested changes in program Services.
L. The Grantee is required to provide documentation of compliance with the
requirements of this Section. On a semi-annual basis, the Grantee will provide
upon reasonable request the Grantor with reports for hold time, busy signals, and
abandonment rate. Upon written request the Grantee and the Grantor will meet by
the twentieth (20) of the month following such semi-annual intervals in order for
the Grantee to submit quarterly phone statistics and to explain the report for the
period. If such information is not available, a detailed written explanation as to
why such information is not available and a date certain upon which such
information will be available, shall be provided by the Grantee. The Grantor may
allow periods of excused non-compliance if the Grantee can provide reasonable
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documentation that these periods of non-compliance were not within Normal
Operating Conditions.
(1) The Grantee will be deemed in compliance if:
(a) During a semi-annual period each criterion has been met or
exceeded; or
(b) If each criterion has been met or exceeded during four (4) months
within the semi-annual period.
(2) Should the Grantee be found to be in non-compliance, the Grantor shall
notify the Grantee in writing and specify the basis for the finding. Upon
notification, the Grantee shall have thirty (30) days to cure such non-
compliance.
(3) If the Grantee, based upon the available monthly data, fails to cure the
non-compliance within the thirty (30) day period, the Grantor may
commence enforcement procedures.
M. The Grantee is encouraged to maintain a customer service home page on the
Internet where customers can obtain information.
7.7 Service Calls and Installations.
Under Normal Operating Conditions, each of the following standards must be met no less
than ninety-five percent (95%) of the time as measured on a quarterly basis:
A. Unless otherwise requested by the Subscriber, a Grantee shall perform service
calls, installations, and requested changes in Service -- upgrades, downgrades,
equipment changes, disconnections -- during normal business hours.
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Disconnections for non-payment may only be performed during normal business
hours.
B. At the time an appointment is scheduled, the Grantee shall inform the Subscriber
of Service scheduling and rescheduling procedures, and/or required payments.
C. If a Grantee cannot perform Standard Installations within five (5) business days of
request by a Subscriber (provided that the schedule or preferences of the Person
requesting the Standard Installation has not been responsible for the delay), the
Subscriber may request and is entitled to receive a free Standard Installation. If a
Grantee fails to provide this free Standard Installation and the request was made
by the Subscriber within thirty (30) days of the Standard Installation request, the
Grantor may direct the Grantee to issue a credit for the Standard Installation.
Failure to comply with such a directive shall subject a Grantee to appropriate
enforcement actions. This section does not apply to the introduction of new
products and Services when a Grantee is utilizing a phased introduction.
D. The appointment window alternatives for Standard Installations, Service calls, and
other installation activities, will be within a maximum four (4) hour time block
during Normal Business Hours. Grantees may schedule Service calls and other
installation activities outside of Normal Business Hours for the express
convenience of a Subscriber, if so requested.
E. No Grantee may cancel an appointment with a Subscriber after the close of
business on the business day prior to the scheduled appointment.
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F. If a Grantee's representative is running late for an appointment with a Subscriber
and will not be able to keep the appointment as scheduled, the Subscriber must be
contacted, and if the appointment must be rescheduled, it shall be rescheduled to
the earliest available time that is convenient for the Subscriber.
G. The Grantee may phone the Subscriber within the appointment window to verify
that the appointment is still needed. If the Subscriber telephone is answered by a
machine or service, the Grantee must leave a message with the Grantee's
telephone number which the Subscriber may use to call back to confirm or
reschedule the appointment.
H. Appointments may not be canceled or rescheduled until field personnel of the
Grantee make every reasonable effort to verify that the Subscriber or other
authorized adult is not at the address for the appointment, including the following
actions:
(1) Knock, and use the doorbell to alert the subscriber; and/or
(2) Look in the front or backyard as long as such action can be accomplished
without trespassing on the Subscriber's property, and without subjecting
the Grantee's representative to physical danger (e.g., dogs).
I. Any vehicle used for the installation, construction, maintenance, or repair of a
Cable System shall bear the identification of the contractor or the applicable
Grantee in a conspicuous place and manner.
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J. Reconnections due to erroneous disconnection based on billing or technical errors
must be completed at no charge within twenty-four (24) hours of notification by
the affected Subscriber.
K. Reconnections after a disconnection attributed to non-payment of bills will be
scheduled in accordance with the Grantee's regular business scheduling practice.
L. Installations or reconnections may not be considered completed until all ordered,
upgraded, or reconnected Services, are in full working order; and Subscribers may
only be billed for Services actually received.
M. A Subscriber's preference as to the point of entry into a residence shall be
observed whenever feasible. Runs in building interiors shall be as unobtrusive as
possible and outlets shall be located for the convenience of the Subscriber. The
Grantee shall use due care in the process of installation and shall repair any
damage to the Subscriber's property caused by installation work. Such restoration
shall be undertaken as soon as possible after the damage is incurred, shall be
subject to subscriber approval of the corrective action, and Grantee shall use its
best efforts to complete the corrective action within no more than thirty (30) days
after the damage is incurred. Should such restoration not be corrected within
thirty (30) days, the Grantee shall notify the Subscriber as to the cause for the
delay and the date when such action shall be completed.
7.8 Repairs and Interruptions
A. Excluding conditions beyond the control of the Grantee, every Grantee will begin
working on Service Interruptions and outages within a reasonable timeframe but
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in no event later than twenty-four (24) hours after the Service Interruption
becomes known. Every Grantee must begin actions to correct other Service
problems on the business day following notification of such Service problems.
(1) Any reports of "no picture/no sound" on the Services must be responded to
and repaired within twenty-four (24) hours of such report, including
arrival of another Service technician qualified to repair the problem if the
first dispatched technician cannot.
(2) Work not requiring the Operator to enter Subscriber premises (or property)
shall not require the Subscriber to be available for an appointment and
shall not be delayed on account of the Grantee's inability to arrange an
appointment with the Subscriber.
B. Work on all other requests for Service other than "no picture/no sound"out-of-
service requests must begin by the next business day after notification of the
problem and must ordinarily be completed within seventy-two (72) hours of the
initial request. If for reasons beyond the Grantee's control a longer time for the
completion of such repairs is necessitated, the Grantee shall exercise all due
diligence to complete the work in the shortest period of time possible. The lack of
appropriate replacement parts on hand shall not constitute a condition beyond the
Grantee's control.
C. Outside repairs to cable plant which cannot be made by the initial Service
technician dispatched, shall be re -scheduled within twenty-four (24) hours of the
originally scheduled Service call except for those circumstances that are beyond
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the Grantee's control. The Subscriber does not need to be home for outside plant
and line repairs.
D. A Grantee may intentionally interrupt Service only for good cause and for the
shortest time possible, including interruption for system upgrade, maintenance
and repair. Routine maintenance requiring Service Interuptions shall occur at
times that affect the fewest number of Subscribers, generally between 12:00 A.M.
and 6:00 A.M, subject to the safety needs of Grantee's employees. The Grantee
shall post override notices on the System's Channels to advise Subscribers in
advance of planned Service Interruptions. To the extent that specific
neighborhoods will be affected by a planned outage, such as during an upgrade,
the Grantee shall to the extent practical provide advance notice through telephone
calls and/or door hangers.
E. A Grantee shall provide a credit for one day's Service for each Service
Interruption exceeding four (4) hours in any twenty-four (24) hour period, unless
it is demonstrated that the Subscriber caused the outage, or the outage was
planned as part of an upgrade or other work that occurred between the hours of
12:00 A.M. and 6:00 A.M., of which the City and the Subscriber received
appropriate prior notification. A subscriber is entitled to a full refund for any
cable system or equipment impairment to a pay per view event. These credits and
refunds shall be made available upon request by subscriber.
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F.
Technicians that are employed by a Grantee and capable of performing Service
related emergency repairs and maintenance must be available twenty-four (24)
hours a day, including weekends and holidays.
G. No charge shall be made to a Subscriber for any Service call relating to Grantee
owned and Grantee maintained equipment after the initial installation of Cable
Service unless the problem giving rise to the Service request can be demonstrated
by Grantee to have been:
1. Caused by the negligence or malicious destruction of cable equipment by
the Subscriber; or
2. A problem established as having been non -cable in origin.
H. An "Identified Outage" is construed as reports of no picture/no sound for the
Cable Service from five percent (5%) or more Subscribers served by the same
node within twenty (20) minutes of each other.
Cable drop lines, cable trunk lines, or any other type of outside wiring that
comprise part of the Grantee's Cable System that are located underground, shall
be placed in such locations pursuant to City Code, and the surrounding ground
shall be restored as close as is practical to its condition immediately prior to such
underground construction activity within seventy-two (72) hours after connection
to the Cable System. Except for the Grantee's maintenance facilities, no cable
drop line, cable trunk line, or any other type of outside wiring shall be permitted
to lay upon the ground within the City, except for the express purpose of being
immediately connected to the Cable System of the Grantee. The requirements of
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this subsection shall apply to all installation, reinstallation, Service or repair
commenced by the Grantee within the City during normal operating conditions.
7.9 Disconnections, Downgrades and Refunds
A. A Grantee shall not terminate residential Service for non-payment of a delinquent
account unless the Grantee provides initial notice of the delinquency and
impending termination at least fourteen (14) calendar days prior to the proposed
termination. The Notice shall be mailed, postage prepaid, to the Subscriber to
whom the Service is billed. This section does not apply to Subscribers
disconnected due to insufficient funds.
B. The notice of delinquency and impending termination may be part of a billing
statement, provided that the message is in bold or Large type or other similar
manner designed to bring the information to the Subscriber's attention.
C. No Subscriber may be disconnected for non-payment if payment of outstanding
balances is made before the scheduled date for disconnection, up to and including
the last business day before the scheduled disconnection.
D. Service terminated without good cause must be restored without charge for the
Service restoration. Good cause includes, but is not limited to, signal leakage,
failure to pay, payment by check for which there are insufficient funds, theft of
Service, abuse of equipment or System personnel, or other similar Subscriber
actions. No Subscriber may be disconnected due to a Grantee's failure to timely
or correctly post payments.
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E. No Subscriber may be disconnected outside of Normal Business Hours or on
Sundays or holidays.
F. The technician performing the disconnection must perform such disconnection in
the safest reasonable manner.
G. Subject to paragraph 7.9 F, disconnections for non-payment which are completed
in the field must be accompanied by a door tag which provides notice that the
technician has been present and a telephone number for Grantee's customer
service office. Disconnections made remotely by computer require the Grantee to
mail information describing the amount of payment in arrears as of the
disconnection date, and applicable reconnection charges and procedures to the
Subscriber. After disconnection, upon payment by the Subscriber of all proper
charges in full, the Grantee shall reinstate Service as provided for herein.
H. Absent extenuating circumstances, a Grantee is not required to reconnect a
Subscriber with an undisputed outstanding balance.
L A Grantee is permitted to refuse orders for premium or "pay per view" Services
from Subscribers with chronic non-payment records.
J. A Grantee may disconnect Subscriber premises that are responsible for signal
leakage in excess of applicable federal limits. Grantee may effectuate such
disconnection without advance notice, provided that the Grantee shall
immediately notify the Subscriber with door tags and/or telephone calls. If the
source of the signal leakage is remedied, the Grantee shall reconnect the
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Subscriber at no charge. For purposes of this Section, use of FCC -approved
navigation devices does not in and of itself constitute signal leakage.
K. Subscribers may request disconnection or a downgrade of Cable Service at any
time. The Grantee may not impose any charge for Service delivered after the
requested date of disconnection as long as the request is made at least one day
before the requested date of disconnection. As provided under federal law,
subscribers may request a downgrade at no charge if made within thirty (30) days
of a rate increase.
L. If a Grantee fails to provide Cable Service requested by a Subscriber who is
entitled to Cable Service under a Franchise Agreement or this Ordinance, the
Grantee shall, after adequate notification and being afforded the opportunity to
provide the Service, promptly refund all deposits or advance charges paid for the
Service in question by said Subscriber.
M. If any Subscriber has made an annual payment in advance and terminates Service
because of the failure of a Grantee to render the Service in accordance with the
standards set forth in a Franchise Agreement or this Ordinance, the Grantee shall
refund to such Subscriber an amount equal to the prorated amount of the
remaining period of the prepayment.
N. The refund provisions provided for in this section do not alter a Grantee's
responsibility to Subscribers under any separate contractual agreement or relieve a
Grantee of any other liability.
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O. Subscribers may be asked, but not required as a condition of any refund or return
of Subscriber deposits to personally return such equipment to the Grantee's office.
P. Refunds for known system outages shall be obtained upon request of the
subscriber of the cable operator.
Q. Nothing in this Ordinance shall limit the right of a Grantee to deny Service to any
household or individual which has a negative credit or Service history with
Grantee, which may include non-payment of bills, theft or damage to the
Grantee's equipment, outstanding balances, or threats or assaults on employees of
Grantee in the course of their employment. In the event Service is denied, the
Grantee will give notice to the Subscriber of the right to contact the appropriate
authority, as designated by the City.
7.10 Communications Between Grantees and Subscribers.
A. Notifications to Subscribers:
(1) Every Grantee shall provide written information to Subscribers on each of
the following topics at the time of installation, at least annually to all
Subscribers, at any time upon request, and at least thirty (30) days prior to
making significant changes in such information (Provided, however, that
Grantee shall make reasonable efforts to provide notification to the City
of all such significant changes prior to notifying Subscribers):
(a) Product and Services offered;
(b) Prices and options for programming Services and conditions of
subscription to programming and other Services and facilities. If
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Grantee reasonably determines it would reduce confusion as to
what the total cost of Cable Service would typically be, at the time
of installation, Grantee will quote to Subscribers prices that include
typical Franchise Fees and any other fixed costs (such as FCC
regulatory fees and public access support payments). Nothing in
this section prohibits or restricts use of rates without Franchise
Fees and/or other fixed cost elements in area -wide advertisements;
(c) Installation and maintenance policies including, when applicable,
information regarding the Subscriber's home wiring rights and
information describing ownership of internal wiring during the
period Service is provided;
(d) Instructions on how to use Services;
(e) Instructions on how to place a Service call;
(f) Channel positions of programming offered on a System;
(g) Billing and Complaint procedures, including the name, address and
telephone number of the City; and
(h) The Grantee's practices and procedures for protecting against
invasions of privacy pursuant to the FCC's rules.
(2) Grantee promotional materials, announcements and advertising of Service
to Subscribers, including pay-per-view or event programming, shall
clearly and accurately disclose price terms. In the case of telephone
orders, the Grantee shall take appropriate steps to ensure that price terms
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are clearly and accurately disclosed to potential customers before the order
is accepted.
(3) Subscribers will be given thirty (30) days advance notice of any changes in
rates, programming Services, or Channel positions, if the change is within
the control of the Grantee. All such notice shall be provided in writing by
any reasonable means. In addition, every Grantee shall notify Subscribers
thirty (30) days in advance of any significant changes in other information
required by this section. Notwithstanding the foregoing or any provision
of this Ordinance to the contrary, a Grantee shall not be required to
provide prior notice of any rate change that is the result of a regulatory fee,
Franchise Fee, or any other fee, tax assessment, or change of any kind
imposed by any government entity on the transaction between the Grantee
and the Subscriber.
Billing.
(1) The organization and format of all bills must be developed in accordance
with industry standards.
(2) Bills must be clear, concise, and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, Basic and
premium Service charges and equipment charges.
(3) Bills must clearly show a specific payment due date.
(4) If a Grantee chooses to itemize, as a separate line item on bills, Franchise
Fees or other government imposed fees attributable to the total bill, such
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fees must be shown in accordance with any applicable law concerning the
Grantee's ability to itemize such fees. Bill language related to Franchise
Fees shall be identified in the following manner: "Franchise Fee." Any
passthrough of grants to support the City's government access channel
may be separately identified on Subscriber bills as set forth in the
Franchise Agreement.
(5) Bills must clearly delineate all activity during the billing period, including
optional charges, rebates, and credits. Nothing in this section prohibits or
restricts a Grantee from offering packages of programming to Subscribers
and to identify such packages on the Subscriber bill.
(6) The billing statement must clearly and conspicuously indicate the past due
date, and if applicable the date certain that a Subscriber's Service will be
disconnected and a telephone number for the Subscriber to call to make
payment arrangements or otherwise resolve a billing dispute.
(7) Negative option billing is prohibited in accordance with applicable federal
law.
(8) In case of a billing dispute, a Grantee must respond to a Complaint from a
Subscriber within fifteen (15) calendar days. Credits for Service shall be
issued no later than the Subscriber's next billing cycle after determination
that the credit is warranted.
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C.
Late Payment for Cable Service
Grantees shall provide reasonable notice to the City and Subscribers of the
amount
of any processing fees for late payments and the manner of imposing such fees.
Any late fee that may be imposed shall be in an amount and manner consistent
with
applicable state and federal law.
D. Construction and Outages
To the extent feasible, the Grantee shall post override notices on appropriate
System Channels, and may make use of local advertising availabilities on
programming Channels, to advise Subscribers in advance of planned construction
or maintenance that will cause or is likely to cause Service Interruptions. To the
extent that specific neighborhoods will be impacted by a planned outage, such as
during an upgrade, the Grantee shall provide at least seven (7) calendar days
advance notice through telephone calls, door hangers or other reasonable means
that are designed to be realistically effective in bringing the information to the
attention of Subscribers.
7.11 Complaint Log.
Subject to the privacy provisions of 47 U.S.C. § 521 et seq., Grantor and every Grantee
shall prepare and maintain written records of all Complaints made to them and the
resolution of such Complaints, including the date of such resolution. Such written
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records shall be on file at the office of each Grantee. Every Grantee shall make available
to Grantor a written summary of such Complaints and their resolution upon request.
7.12 Parental Control
Every Grantee shall make available to any Subscriber upon request a "lockout" device for
blocking both video and audio portions of any channel(s) of programming entering the
Subscriber's premises. Such device shall be provided at a reasonable charge, except to
the extent that federal law specifically provides otherwise. The Grantee may, however,
require a reasonable security deposit for the use of such a device
7.13 Periodic Subscriber Survey.
The Franchise Agreement shall provide terms for a periodic Subscriber survey to assess
the Cable -related needs of the community throughout the term of the Franchise as well as
procedures for review and implementation of changes identified through any such survey.
7.14 Service Area
No Grantee may discriminate in the build -out of its System to a particular area of the City
or provision of Service to individual or groups of Residents on the basis of race, creed,
religion or economic condition. Unless the Franchise Agreement provides otherwise,
every Grantee shall serve all areas of the City with populations of at Least thirty (30)
dwelling units per cable mile, including areas annexed subsequent to the grant of the
Franchise. The Franchise Agreement shall provide a schedule of the areas to be served,
and the specific build -out requirements of the Grantee, and shall also describe the process
for extending service to areas that will meet minimum density requirements at some
future date. Unless the Franchise Agreement provides otherwise, every Grantee shall
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extend Service to commercial areas at no additional costs where the costs to do so does
not exceed the same costs of providing service in a residential area with a density of thirty
(30) homes per mile. The Franchise Agreement shall also set forth the policies and
procedures under which Cable Service will be extended to a Person requesting the
extension of Service into an area that does not meet the requisite density standards.
7.15 Customer Service Reporting Requirements.
In addition to the semi-annual reports on telephone Service compliance detailed in
Section 7.6.M, the Grantor may require upon reasonable request a Grantee to periodically
prepare and furnish to Grantor semi-annual reports and any other reasonable information
relevant to the Grantee's compliance with the customer Service requirements of this
Ordinance. Such reports shall include, at minimum, the following:
A. A Service Interruptions Report that tracks information on a monthly basis to
include:
(1) Total number of reported Service Interruptions;
(2) Date and time of all reported Service Interruptions;
(3) Total hours that the System was out -of -Service as related to planned
upgrades, maintenance or Channel line-up changes performed by a
Grantee; and
(4) Estimated number of Subscribers affected by each incident.
In addition to the above, the City may request that Service Interruption
Reports contain graph(s) that depict a Grantee's performance with respect
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to the items above for up to a three (3) year period prior to the date the
report was requested.
13. Results of any FCC required technical or performance testing on the System.
7.16 City Monitoring.
In addition to free outlets, free Cable Service or Services otherwise required by the
Franchise, Grantee shall provide one Service outlet (which shall be at the Cable
Administrator's office at City Hall, unless otherwise specified by City) that shall receive
without charge all basic and expanded basic Cable programming provided by Grantee.
Such Service shall be provided in such a manner that the City may monitor the
programming and use of the Cable System for compliance with the Franchise Agreement,
this Ordinance, FCC technical standards, and applicable State and federal law. The
Services provided pursuant to this requirement shall be in a secure office location, and
not in a location open to public viewing.
ARTICLE 8. CONSTRUCTION STANDARDS
8.1 Right -of -Way Construction.
Prior to commencing any construction in the City, a Grantee must obtain all necessary
permits and licenses required by federal, state and city laws, ordinances and rules, and
pay all associated fees. Further, a Grantee shall comply with all applicable laws,
ordinances, rules, and standards relating to the construction, operation and maintenance
of a Cable Television System.
8.2 Compliance with Laws.
At a minimum, and without limitation, a Grantee shall adhere to all building, electrical
and zoning codes currently or hereafter in force in the City. The construction, installation,
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and maintenance of the Cable System shall be effectuated by Grantee in a manner that is
consistent with the laws, ordinances and construction standards of the State of Texas, the
Occupational Safety and Health Administration, the National Electrical Safety Code,
National Electrical Code and the FCC, to the extent applicable, as well as all other
applicable laws, rules, regulations and ordinances that are generally applicable and
promulgated pursuant to the City's lawful police power. All open connections on
splitters, couplers and other devices shall be properly terminated.
8.3 Minimum Interference.
All of Grantee's construction, installation, operation, repair and maintenance, and the
arrangement of its lines, cables and other appurtenances, on both public and private
property, shall be conducted in such a manner as to cause minimum interference with the
rights and reasonable convenience of the public and any property owners that may be
affected. In the event of any such interference, the City may require the removal of
Grantee's lines, cables and appurtenances from the Public Rights -of -Way in question, at
the sole expense of the Grantee.
8.4 Repair of Property.
Grantee shall promptly repair and restore any City or private property which may be
damaged as a result of the construction, installation, operation, repair or maintenance of
the Cable System. Any such property damaged or destroyed shall be promptly repaired
and restored by Grantee, at Grantee's sole cost and expense and to the reasonable
satisfaction of the City, to its condition prior to being damaged or shall be replaced by
Grantee with equivalent property.
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8.5 Erection of Poles.
Grantee shall not erect, for any reason, any pole on or along any Public Rights -of -Way in
an existing aerial utility system without the advance written approval of the City. If
additional poles in an existing aerial route are required, Grantee shall negotiate, as
needed, with the utility for the installation of the needed poles. Any such addition shall
require the advance written approval of the City. Grantee shall negotiate the lease of pole
space and facilities from the existing pole owners for all aerial construction, under
mutually acceptable terms and conditions. The City shall assist in arriving at an equitable
pole rental agreement.
8.6 Reservations of Street Rights.
Nothing in this Ordinance shall be construed to prevent the City from constructing storm
or sanitary sewers, grading, paving, repairing or altering any Public Rights -of -Way, or
laying down, repairing or removing water mains or gas lines, traffic signal control
systems, City fiber plant, or constructing or establishing any public utility, Service or
other public work that the City may operate or undertake now or in the future. All such
work shall be done, insofar as practicable, in such manner as not to obstruct, injure or
prevent the free use and operation of poles, wires, conduits, conductors, pipes or
appurtenances of Grantee. If City in its sole discretion shall determine that Grantee will
interfere with the construction or repair of any Public Right -of -Way or public
improvement, whether it be construction, repair or removal of a sewer or water main, the
improvement of any Public Way or any other public improvement, then all such property
of Grantee shall be removed or replaced, or temporarily disconnected, in such manner as
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shall be directed by the City so that the same shall not interfere with the public works of
such City. Such removal or replacement shall be at the expense of Grantee; provided,
however, that nothing in this Ordinance shall preclude Grantee from seeking
reimbursement for removal or replacement costs from any public funds generally
available to Rights -of -Way users for the reimbursement of such costs.
8.7 Underground Installation.
In those areas within the City where Cable System facilities are currently placed
underground, all Cable System facilities shall remain or be placed underground. In areas
where either telephone or electric utility facilities are above ground at the time of
installation, Grantee may install its Cable System facilities above ground, provided that at
such time as both electric and telephone utility facilities are placed underground, Grantee
shall likewise place its Cable System facilities without cost to the City or if City requires
undergrounding in the future pursuant to a separate ordinance. Nothing contained in this
Section shall require a Grantee to construct, operate and maintain underground any
ground -mounted appurtenances, except that Grantee shall take steps to minimize the
number and visual impact of such facilities.
8.8 Conduit.
A. The City shall not be responsible for any cuts or damage to buried or underground
facilities of a Grantee that are not clearly marked or cannot be located through the
Texas "one -call' service.
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13. Grantee shall provide the City detailed strand and trench maps in both paper and a
mutually agreed upon electronic format of all new underground and buried cable
facilities upon activation of such sections of the System.
C. Grantee shall provide a contact number for the City to call in emergency
situations requiring an immediate response on the part of the City, or a City
Utility. If the Grantee does not properly and effectively identify the precise
location of its facilities within forty-five minutes of an emergency call from the
City or City Utility, the City shall not be responsible for damage to the Grantees
facilities.
8.9 Clearing Poles and Cables.
Grantee shall have the right to remove, trim, cut and to keep clear of its poles, cables,
underground conduits and related equipment the trees in and along the public streets, but,
in the exercise of such right, Grantee shall not cut such trees to any greater extent that is
reasonably necessary for the construction, erection, installation, maintenance and use of
Cable System equipment. Except in emergency situations, Grantee shall not remove, trim
or cut such trees from any public streets without first providing reasonable notice to the
City of its intention to do so, such notice to be delivered not less than ten (10) days in
advance. The Grantee shall compensate the City or any private owners of such trees for
any damage proximately caused by Grantee's negligent conduct.
8.10 Moving Facilities.
Grantee, on the request of the City, or any Person holding a building permit issued by the
City, or any permit issued by an appropriate State agency, shall temporarily move its
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wires, cables, poles or other Cable System facilities to permit the moving of large objects,
vehicles, buildings or other structures. The expense of such temporary moves shall be
paid to Grantee by the Person requesting the same and Grantee shall have the authority to
require such payment in advance. Grantee shall be given not less than thirty (30) days
advance notice to arrange for such temporary moves.
8.11 Work Performed by Others.
A. A Grantee shall make available to the City upon reasonable request the company
names and businesses addresses of any Person, other than the Grantee, which
performs Services pursuant to a Franchise Agreement; provided, however, that all
provisions of this Ordinance remain the responsibility of Grantee.
B. To the extent applicable, all provisions of this Ordinance shall apply to any
subcontractors or others performing any work or Services pursuant to the
provisions of a Franchise Agreement on behalf of a Grantee.
8.12 Duty to Grantee.
Nothing contained in this Ordinance shall relieve any person from liability arising out of
the failure to exercise reasonable care to avoid injuring Grantee's facilities while
performing any work connected with grading, regarding or changing the line of any
Public Way or with the construction or reconstruction of any sewer or water system or
utility system.
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ARTICLE 9. OPERATION AND MAINTENANCE
9.1 Open Books and Records.
Each Grantee shall cooperate with the Grantor with respect to Grantor's administration of
this Ordinance and its applicable Franchise Agreement. Grantor shall have the right to
inspect, at any time during Normal Business Hours all books, records, maps, plans,
income tax returns, financial statements, Service complaint logs, performance test results,
and other existing like materials of a Grantee that relate to the operation of a Grantee's
System and that are reasonably necessary to Grantor's enforcement or administration of
this Ordinance and/or a Franchise Agreement. The Grantee shall not be required to
maintain any books or records for Franchise compliance purposes longer than five
(5)
years. Upon request, the Grantor will treat designated information disclosed by a Grantee
as confidential to the extent permissible under state and federal law.
9.2 Communications with Regulatory Agencies.
A Grantee shall provide the City with timely notice of all petitions, applications,
communications, and reports submitted by each Grantee to the FCC, Securities and
Exchange Commission, or any other federal or State regulatory commission or agency
having jurisdiction in respect to any matters affecting System operations, and shall make
copies of such filings and pleadings available to Grantor upon request within thirty (30)
days of the filing. Copies of responses from the above regulatory agencies to each
Grantee likewise shall be made available promptly to Grantor, upon request.
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9.3 Annual Reports.
A. Upon request, each Grantee shall make available to Grantor, at the end of each of
the applicable Grantee's fiscal years during the term of a Franchise Agreement,
the following:
(1)
A revenue statement certified by an officer or certified public accountant
of the Grantee showing, in such detail as acceptable to Grantor, the Gross
Revenues of the Grantee for the preceding fiscal year;
(2) A current list of names and addresses of each officer and director and other
management personnel of the Grantee;
(3) A copy of all documents that relate to the Grantee's System that were filed
with any federal, State, or local agencies during the preceding fiscal year
and that were not previously filed with Grantor;
(4) A statement of the Grantee's current billing practices and charges;
(5) A copy of the Grantee's current Subscriber Service contract; and
(6) A copy of Annual Reports, if any, to stockholders for operating company
and parent company.
B. Grantor and its agents and representatives may and shall have the authority to
arrange for and conduct an audit of and copy the books and records necessary for
the enforcement of the Franchise Agreement of any Grantee. A Grantee shall first
be given twenty (20) calendar days notice of the audit, the description of and
purpose for the audit, and a description, to the best of Grantor's ability, of the
books, records, and documents that Grantor wants to review.
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9.4 Additional Reports.
Upon request, each Grantee shall prepare and furnish to Grantor, at the times and in the
form prescribed, such additional reports with respect to its operations, affairs,
transactions, or property, which are reasonable and in the sole discretion of the Grantor
are necessary.
9.5 Strand -and -Trench Maps .
A. All lines, equipment, and connections in, over, under, and upon the Right -of -Way
and private property within the City, wherever situated or located, shall at all
times be kept and maintained in a safe and suitable condition and in good order
and repair.
B. Upon completion of any construction, upgrade or rebuild the Grantee shall
provide the Grantor a copy of all strand -and -trench maps.
9.6 Service Contract and Subscriber Information.
A. Each Grantee shall have authority to promulgate such rules, regulations, terms,
and conditions governing the conduct of its business as shall be reasonably
necessary to enable the Grantee to exercise its rights and perform its obligations
under this Ordinance and any Franchise Agreement and to assure uninterrupted
Service to all of its Subscribers; provided such rules, regulations, terms, and
conditions shall not be in conflict with the provisions of this Ordinance, a
Franchise Agreement, federal, State and/or City law, or any applicable rules and
regulations.
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B. Every Grantee shall submit to Grantor any Subscriber contract form that it
utilizes. If no written contract exists, a Grantee shall file with the City a
document completely and concisely stating the terms of the residential Subscriber
contract offered, specifically including the length of the Subscriber contract. The
length and terms of any Subscriber contract shall be available for public
inspection during Normal Business Hours.
C. The term of an end-user residential Subscriber contract for Service shall not be for
more than twelve (12) months duration unless after twelve (12) months the
contract may be terminated at the Subscriber's option with no penalty to
Subscriber. Nothing in this paragraph shall prohibit a Grantee from entering into
Subscriber contracts by reason of a line extension policy for a term that is longer
than twelve (12) months in duration.
ARTICLE 10. GENERAL FINANCIAL AND INSURANCE PROVISIONS
10.1 Franchise Fee.
A. As compensation for a Franchise, and in consideration of permission to use the
Rights -of -Way of the City for the construction, operation and maintenance, of a
Cable System within the City, and to defray the costs of regulation, each Grantee
shall pay to Grantor an annual amount equal to five percent (5%) of the Grantee's
Gross Revenues. To the extent permissible under applicable law, such Franchise
Fee shall be considered separate and distinct from any Municipal
Telecommunications Consent Fees assessed against a Grantee for its use of the
City's Rights -of -Way for the provision of telecommunications Services pursuant
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to the terms of Title 9, Chapter 283 of the Texas Local Government Code, or
other applicable state law. The payment of the Municipal Consent Fee shall be on
a non-discriminatory basis as between telecommunications providers.
B. Payments due Grantor under this section shall be computed quarterly, for the
preceding quarter. Each quarter payment shall be due and payable no later than
forty-five (45) days after the end of the preceding quarter. Unless the Franchise
Agreement provides otherwise, at the request of the City, Grantee shall
electronically deposit payments into a financial institution designated by the City.
Any associated charges for electronic transfer may be credited against the
Franchise Fee. Verification of this deposit shall be provided to the City Treasurer.
Each payment shall be accompanied by a brief report by a Grantee showing the
basis for the computation and a "Franchise Fee Worksheet" listing all of the
sources of revenues attributable to the operation of Grantee's System. A Grantee
that is subject to a Municipal Telecommunications Consent Fee shall maintain
separate accounts and records with respect to the calculation and payment of such
fees.
C. No acceptance of any payment shall be construed as an accord that the amount
paid is in fact the correct amount, nor shall such acceptance of payment be
construed as a release of any claim Grantor may have for further sums payable
under the provisions of this Ordinance or a Franchise Agreement. All amounts
paid shall be subject to audit and recomputation by Grantor or its designee at any
time during any calendar year (but no more than once per calendar year) upon
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twenty (20) calendar days notice, including information on the specific
documents requested to be reviewed.
10.2 Security Fund.
Each Grantee shall maintain a security fund with the City to ensure compliance with this
Ordinance and the applicable Franchise Agreement, in an amount and in a manner as set
forth in the Grantee's Franchise Agreement.
10.3 Penalties Procedure.
A. Whenever Grantor has reason to believe that a Grantee has violated any provision
of a Franchise Agreement or this Ordinance, Grantor shall first notify the Grantee
of the violation and demand correction within a reasonable time, which shall not
be less than twenty (20) days in the case of the failure of a Grantee to pay any sum
or other amount due the Grantor under a Franchise Agreement, and thirty (30)
days in all other cases. If a Grantee fails to correct the violation within the time
prescribed, or if a Grantee is unable to correct the violation and fails to commence
corrective action within the time prescribed and to diligently remedy such
violation thereafter, the Grantee shall then be given written notice of not less than
twenty (20) days of a public hearing to be held before the Council. Said notice
shall indicate with reasonable specificity the violation alleged to have occurred.
B. At the public hearing, the Council shall hear and consider all relevant evidence
and thereafter render findings and a decision based upon the evidence. Any such
hearing must, at a minimum, provide the Grantee a full and fair opportunity to be
heard by the City.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
C. In the event the City finds that a Grantee has corrected the violation or promptly
commenced correction of such violation after notice thereof from Grantor and is
diligently proceeding to fully remedy the violation, or that no violation has
occurred, the proceedings shall terminate and no penalty or other sanction shall be
imposed.
D. In the event the City finds that a violation exists and that a Grantee has not
corrected the same in a satisfactory manner or did not promptly commence and
diligently proceed to correct the violation, the City may impose liquidated
damages from the security fund, as set out in the Franchise Agreement.
E. If Grantor elects to assess liquidated damages, then such election shall constitute
Grantor's exclusive remedy for a period of sixty (60) days. Thereafter, if a
Grantee remains in non-compliance, the Grantor may pursue any other available
remedy.
F. In he event that a Franchise is cancelled or terminated by reason of the default of a
Grantee, the security fund deposited pursuant to a Franchise Agreement shall
remain in effect and available to the Grantor until all pending claims or penalties
are resolved or settled, after which point any remaining amounts in the security
fund shall revert to the possession of the Grantee.
G. The rights reserved to Grantor with respect to the security fund are in addition to
all other rights of Grantor, whether reserved by a Franchise Agreement, this
Ordinance, or authorized by law, and no action, proceeding, or exercise of a right
with respect to such security fund shall affect any other right Grantor may have.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
H. In instances of repeated violations, whether remedied or not, the Grantor shall
serve special notice outlining additional remediation requirements. Failure to
cure, as measured by repeated instances of the same violation, is evidence of an
evasive practice and may lead to revocation under Article 11.
10.4 Bonds, Indemnification, and Insurance.
Each Grantee shall maintain bonds and insurance with the City in amounts and in a
manner as set forth in the Grantee's Franchise Agreement. Each Grantee also shall be
required to indemnify the City in a manner as set forth in the Grantee's Franchise
Agreement.
ARTICLE 11. REVOCATION
11.1 Grounds for Revocation.
In addition to any rights in this Ordinance or a Franchise Agreement, Grantor reserves the
right to revoke the Franchise, and all rights and privileges pertaining thereto, in the event
that:
A. A Grantee substantially violates any material provision of this Ordinance or a
Franchise Agreement;
B. A Grantee attempts to evade any of the provisions of this Ordinance or a
Franchise Agreement;
C. A Grantee practices an act of fraud or deceit upon the Grantor; or
D. A Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged
bankrupt.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
11.2 Procedure.
A. Whenever Grantor has reason to believe that there may be grounds for
revocation of a Franchise, Grantor shall first notify the Grantee in writing of its
basis for believing grounds for revocation exist. Such notice shall indicate with
reasonable specificity the grounds for revocation that are believed to exist so that
the Grantee may have a reasonable opportunity to cure or otherwise address the
grounds. If a Grantee fails to adequately cure or address the purported grounds
for revocation within thirty (30) days of such notice, then the Grantor may, upon
thirty (30) days written notice to the Grantee, commence a public administrative
hearing to determine whether there exists ground for revocation.
B. The administrative hearing shall be conducted so as to protect the full due process
rights of the parties and provide for, at a minimum, the right to have counsel, the
right to call and cross examine witnesses, if requested the right to a full transcript
of the proceedings, and the right to have the matter heard before a mutually agreed
upon third party hearing officer.
C. After the close of the hearing, Grantor or the designated hearing officer shall issue
a written decision based on the record of the proceedings, stating with specificity
the findings and reasons supporting the decision.
D. Upon revocation, a Grantee shall have a period of sixty (60) days subsequent to
the date of the formal adoption of a revocation of the Franchise by the City within
which to file an appeal with a court of competent jurisdiction.
E. During the appeal period, the Franchise shall remain in full force and effect.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
ARTICLE 12. FORECLOSURE, RECEIVERSHIP AND ABANDONMENT
12.1 Foreclosure.
Upon the foreclosure or other judicial sale of all or a part of a System, or upon the
termination of any lease covering all or part of a System, a Grantee shall notify Grantor
of such fact and such notification shall be treated as a notification that a change in control
of the Grantee has taken place, and the provisions of this Ordinance governing the
consent to transfer or change in ownership shall apply without regard to how such
transfer or change in ownership occurred.
12.2 Receivership.
Grantor shall have the right to cancel a Franchise Agreement one hundred twenty (120)
days after the appointment of a receiver or trustee to take over and conduct the business
of a Grantee, whether in 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:
A. Within one hundred twenty (120) days after its election or appointment, the
receiver or trustee has fully complied with all the provisions of Grantee's
Franchise Agreement and this Ordinance and remedied all defaults thereunder;
and
B. Such receiver or trustee, within said one hundred twenty (120) days, has executed
an agreement, duly approved by a court having jurisdiction, whereby such
receiver or trustee assumes and agrees to be bound by each and every provision of
this Ordinance and the applicable Franchise Agreement.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
ARTICLE 13. PURCHASE OF SYSTEM
13.1 Grantor's Right to Purchase System upon Receipt By Grantee of a Bona Fide Offer.
Grantor shall be entitled to a right of first refusal of any bona fide offer to purchase
the System made to a Grantee. Bona fide offer as used in this section means an offer
received by a Grantee that it intends to accept. The City shall have thirty (30) days to
notify the Grantee of its intent to purchase the System, upon receipt of such notice the
Grantee shall have thirty (30) days to provide the City with all information reasonably
necessary for the city to conduct a due diligence with respect to the purchase of the
System. Consistent with Section 14.1 the City shall notify the Grantee days in writing
within 120 days of notice of the bona fide offer of its decision whether to purchase the
System.
13.2 Purchase By Grantor Upon Termination of Franchise Term or Revocation of Franchise.
A. The Grantor may, in accordance with and to the extent permitted by 47 U.S.C. §
547, upon the payment of a fair valuation, ascertain, purchase, condemn, acquire,
take over, and hold the property and plant of a Grantee, in whole or in part, on the
following conditions:
(1) Upon revocation of a Franchise, such valuation shall not include any sum
attributable to the value of the Franchise itself and plant and property shall
be valued according to its book value at the time of revocation, or the
System's initial cost less depreciation and salvage.
(2) At the expiration of a Franchise Agreement, such valuation shall be at fair
market value, exclusive of the value attributed to the Franchise itself.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
(3) In the event Grantor shall terminate a Franchise pursuant to the provisions
of this Ordinance or a Franchise Agreement, and commenced operation of
the System, Grantor shall reimburse the Grantee for the fair market value
of the System.
ARTICLE 14. SALE OR TRANSFER
14.1 Sale or Transfer of Franchise.
A. No Grantee shall sell, transfer, lease, assign, sublet, or dispose of, in whole or in
part, an interest in or control of a Franchise or Cable System or any of the rights
or privileges granted by a Franchise Agreement, without the prior consent of the
Grantor, which consent shall not be unreasonably denied or delayed and may be
denied only upon a good faith finding by the Grantor that the proposed transferee
lacks the legal, technical, or financial qualifications to consummate the transaction
and operate the System so as to perform its obligations under this Ordinance and
the applicable Franchise Agreement. This section shall not apply to sales of
property or equipment in the normal course of business. Consent from the
Grantor shall not be required for a transfer in trust, mortgage, or other instrument
of hypothecation, in whole or in part, to secure an indebtedness, or for a pro forma
transfer to a corporation, partnership, or other entity controlling, controlled by, or
under common control with a Grantee.
B. The following events shall be deemed to be a sale, assignment, or other transfer of
an interest in or control of a Franchise or Cable System requiring compliance with
this section: (i) the sale, assignment, or other transfer of all or a majority of a
66
MASTER CABLE SERVICES REGULATORY ORDINANCE
Grantee's assets; (ii) the sale, assignment, or other transfer of capital stock or
partnership, membership, or other equity interests in a Grantee by one or more of
its existing shareholders, partners, members, or other equity owners so as to create
a new controlling interest in a Grantee; (iii) the issuance of additional capital
stock or partnership membership or other equity interest by a Grantee so as to
create a new controlling interest in a Grantee; and (iv) a Grantee's agreement to
transfer management or operation of the Grantee or the System to an unaffiliated
entity. The term "controlling interest" as used herein means majority equity
ownership of a Grantee.
C. In the case of any sale or transfer of ownership of an interest in or control of a
Franchise or Cable System, the City shall have one hundred twenty (120) days to
act upon any request for approval of such sale or transfer that contains or is
accompanied by such information as is required in accordance with FCC
Regulations and the requirements of this Ordinance and the applicable Franchise
Agreement. If the City fails to render a final decision on the request within one
hundred twenty (120) days after receipt by the City of all required information,
such request shall be deemed granted unless the requesting party and the City
agree to an extension of the one hundred twenty (120) day period.
D. Grantor reserves any rights it may have to require that a Grantee pay all costs and
expenses incurred by Grantor in connection with the sale, assignment, or transfer
of a Franchise, including but not limited to the Grantor's costs of reviewing the
qualifications of any proposed transferees.
67
MASTER CABLE SERVICES REGULATORY ORDINANCE
ARTICLE 15. RIGHTS OF INDIVIDUALS PROTECTED
15.1 Discriminatory Practices Prohibited.
No Grantee shall deny Service, deny access, or otherwise discriminate against
Subscribers, programmers, or general citizens on the basis of race, color, religion,
national origin, sex, disability, or age. Every Grantee shall strictly adhere to the equal
employment opportunity requirements of State and federal law. Each Grantee shall
comply at all times with all other applicable federal, State, and local laws, and all
executive and administrative orders relating to non-discrimination.
15.2 Subscriber Privacy .
Grantees shall at all times comply with the federal subscriber privacy requirements
codified at 47 U.S.C. § 551.
ARTICLE 16. MISCELLANEOUS PROVISIONS
16.1 Rate Regulation
The City reserves the right to regulate rates for Basic Cable Service and any other
Services offered over the Cable System, to the extent permitted by federal or State law.
Grantee shall be subject to the rate regulation provisions provided for herein, and those of
the Federal Communications Commission (FCC) at 47 C.F.R., Part 76.900, Subpart N.
The City shall follow the rules relating to cable rate regulation promulgated by the FCC
at 47 C.F.R., Part 76.900, Subpart N.
16.2 Rights Reserved to Grantor.
A. Upon either the expiration or revocation of a Franchise, Grantor shall have
discretion to permit and/or require a Grantee to continue to operate the Cable
68
MASTER CABLE SERVICES REGULATORY ORDINANCE
System for an extended period of time not to exceed six (6) months from the date
of such expiration or revocation. A Grantee shall continue to operate the System
under the terms and conditions of this Ordinance and the applicable Franchise
Agreement and to provide the regular Subscriber Service and any and all of the
Services that may be provided at that time.
B. The Grantor shall have the right to compel continued operation of the Cable
System whether by the Grantee, by a trustee or receiver or by the Grantor, and to
ensure that such operation is consistent with public interest as determined by a
court of competent jurisdiction. The Grantee may not remove equipment or
documents necessary for continued operation of the system.
16.3 Administration of Franchise.
The City shall be responsible for the continued administration of this Ordinance and all
Franchise Agreements. The City may delegate this authority from time to time.
16.4 Nonenforcement by the City.
Grantee shall not be relieved of its obligation to comply with any of the provisions of this
Ordinance by reason of any failure of the city to enforce prompt compliance.
16.5 Govemina Law and Choice of Forum.
Any dispute arising with respect to this Ordinance or a Franchise Agreement granted
pursuant to it, shall be subject to review by the state and federal courts sitting in Nueces
County, Texas.
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MASTER CABLE SERVICES REGULATORY ORDINANCE
16.6 Severability.
If any material Section of this Ordinance or a Franchise Agreement adopted pursuant to
it is held by a governmental authority of competent jurisdiction, to be invaild or unlawful
as conflicting with applicable laws now or hereafter in effect, or is held by a court or
competent governmental authority to be modified in any way in order to conform to the
requirements of any such applicable laws, such provision shall be considered a separate,
distinct, and independent part of this Ordinance, and, to the extent possible, such holding
shall not affect the validity and enforceability of all other provisions hereof.
16.7 Publication of Notices.
All public notices or ordinances required to be published by Grantor under this Ordinance
or any Franchise Agreement shall be published in the official newspaper of the City.
Each Grantee shall pay the costs for publication of its Franchise Agreement and any
amendments thereto, as such publication is required or authorized by law.
Passed and adopted this day of , 199 .
ATTEST:
By By
City of Corpus Christi, Texas
70
State of Texas
County of Nueces
}
}
PUBLISHER'S AFFIDAVIT
CITY OF CORPUS CHRISTI
ss: Ad # 3213192
PO #
Fit
99',
Before me, the undersigned, a Notary Public, this day personally came Darrell
G. Coleman, who being first duly sworn, according to law, says that he is Vice -
President and Chief Financial Officer of the Corpus Christi Caller -Times, a daily
newspaper published at Corpus Christi in said City and State, generally
circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes,
Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb
Counties, and that the publication of, NOTICE OF PASSAGE OF ORDINANCE
NO. which the annexed is a true copy, was inserted in the Corpus Christi Caller -
Times and on the World Wide Web on the Caller -Times Interactive on the 14TH
day(s) of NOVEMBER, 1999.
TWO (2 ) Time(s)
$69.97
� . oR3rr3
Vice -President and Chief Financial Officer
Subscribed and sworn to me on the date of
NOVEMBER 15, 1999.
Notary Public, Nueces County, Texas
CONNIE HARALSON
Print or Type Name of Notary Public
My commission expires on 5/14/01.
!C^r4� Christi Caller -Times, Sunda , November 14, 1999
NOAG
TICE
ORDINANCES NO:
023833
On November 9, 1999, the
City Council of the City of
Corpus Christi, Texas
approved on second and
final reading an
ordinance establishing a
Master Cable Services
Regulatory Ordinance
goveming use by cable
service providers of city
streets, lanes, avenues,
alleys, sidewalks,
bridges, rights -of -ways,
easements, highways
and other places in the
City of Corpus Christi,
Texas; providing for fine
of $500 per day and
other penalties such as
imposing liquidated
damages from the
security fund, all as
contained in the
ordinance, a copy of
which is available for
inspection in the office of
the City Secretary.
/s/Armando Chapa
City Secretary
City of Corpus Christi