HomeMy WebLinkAbout1997-06-09 97-261 ORDINANCECOUNCIL ACTION
Item NO. 97-261
Date June 10, 1997
Item/Subject: Adopting Cable Television Ordinance
Responsible Department: Legal
The attached item would adopt a comprehensive cable television
ordinance, as recommended by representatives of the Bangor -area
cable television franchising authorities consortium. Under 30-A
MASA 9 3008(5), adoption of a local cable Ordinance is required i
order to grant any new cable television franchise. Adoption of the
proposed ordinance would facilitate the City's consideration of
franchise proposals by Access Communications, a new affiliate/
joint venture of Utilicom Networks, Inc. and Bangor Hydro -Electric
Company, and by FrontierVision Operating Partners, LLC, which has
signed an agreement to acquire Cablevision Systems Corporation's
existing cable television franchise operations in the State of
Maine.
(COnt'd On next page)
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Manager's COmments: -An
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City Manager
Associated Information: e5 L&O&
Finance Director
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Passage
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X Referral lb VomiO�s Page 1 of _ 3
97-261
A greed to Councilor Sulllvan June 9, 1997
CITY OF BANGOR
(TITLE) vvrbirtdt=. adopting Cable Television o dinance
Beit orlaimd 6y W City Cmnotl of the Ctty altaxpor, m PoUowe:
THAT Chapter VI of the Laws and Ordinances of the City of Bangor be
amended by adding a new Article 18, a copy of which is on file in
the City Clerk's office.
Due to its length (90 pages), the proposed cable ordinance has not
been reprinted in the City Council's agenda packet. In drafting
the proposed ordinance, an effort was made to address construction
standards, technical requirements for cable facilities, customer
service standards, and other issues that otherwise would be subject
to negotiation in individual franchise agreements. The approach of
addressing these issuesin the ordinance rather than in individual
franchise agreements promotes uniformity and should speed our
direct franchise negotiations with Access Communications and
FrontierVision.
I recommend your approval.
IN CITY OIINCIL
June 9, 1997
Plveb Reading
infected to Municipal
Bperatione Coamittee
T
LEEK V
IN CITY COUNCIL
June 23. 1997
Passed
yes, t absent, t abstained
Councilors notion yea: Aube.
Baldacci, Blanchette, Farmer,
Soucy, Sullivan 6 Woodcock
Councilor absent: Leen
Councilor abstaining: Tyler
Cc -CL) RK
9)-261
ORDINANCE
( TITIE,I Adopting Cable Television ordinance
Cpim tlma
Final Version
Ad pled by By City Council
Sure 23, 1997 C.O. 497-261
CABLE TELEVISION ORDINANCE
CITY OF BANGOR, MAINE
Jnne 9, 1997
TABLE OF CONTENTS
1.0 GENERAL PROVISIONS . . . . . . . . . . . . . . . .
1.1
.
Title . . . . . . . . . . . . . . . . . .
1.2
.
Purpose . . . . . . . . . . . . . . . . . . . .
2.0 DEFINITIONS
AND WORD USAGE . . . . . . . . . . . . . .
2.1
Affiliate . . . . . . . . . . . . .
2.2
Basic Cable Service . . . . . . . . . . . . . .
2.3
Cable Act . . . . . .
2.4
. . . .
Cable Programming Service . . . . . . . . . . .
2.5
Cable Service . . . . . . . . .
2.6
. . .
Cable System or System . . . . . . . . . . .
2.7
City . . . . . . . . . . . . . . . . . . . .
2.8
FCC . . . . . . . . . . . . . . . . .
2.9
.
Franchise . . . . . . . . . . .. . .
2.10
Franchise Agreement . . . . . . . . . . . . . .
2.11
Franchise Area . . . . . . . . . . . . . . . .
2.12
Grantee . . . . . . . . . . . . . . . .
2.13
Gross Revenues . . . . . . . . . .
2.14
. . .
Person. . . . . . . . . . .
2.15
.
Public Right -of -Way . . . . . . . . . .
2.16
Sale . . . . . . . . . . . . . . . .
2.17
.
Service Tier . . . . . . . . . . . . .
2.18
subscriber . . . . . . . . . . . . . . . . .
2.19
Transfer . . . . . . . . . . .
2.20
.
User . . . . . . . . . . . . . . . . . . . . .
3.0 GRANT OF FRANCHISE
3.1
Grant
of Franchise . . . . . . . . .
3.2
Franchise
Required . . . . . . . . . .
3.3
Franchise Characteristics . . . .
3.3.1
Authority Granted by Franchise . . . .
3.3.2
Term of Franchise . . . . . . . . . . .
3.3.3
Non -exclusivity
3.3.4
Franchise Agreement Constitutes Contract
3.3.5
Use of Public Rights -of -Way . . . . .
3.3.6
Franchise Personal to Grantee . . .
3.3.9
Exclusive Contracts Unenforceable .
3.4
Grantee
Subject to Other Laws, Police Power . .
3.4.1
Compliance with Laws . . . . . . .
3.4.2
No Waiver of City Rights .
3.4.3
City Has Maximum Regulatory Authority
3.5
Interpretation
of Franchise Terms .
3.5.1
Provision to City's Benefit Controlling
3.5.2
Liberal Construction . . . . . . . . . .
3.5.3
Governing Law
3.6
Operation
Of a Cable System Without a Franchise
3.7
Right
of Condemnation Reserved . . . . . . . .
3.8
Acts
at Grantee's Expense . . . . . . . .
4.0 APPLICATION FOR GRANT, RENEWAL, OR MODIFICATION
OF FRANCHISES . . . . . . . . . . . . .
14
4.1
Written Application . . . .. . .
14
4.1.1 Application Requirement . . . . . . .
14
4.1.2 Acceptability for Filing . . .
14
4.1.3 Applications Available for Public
Inspection .. . . . . . . . .
15
4.1.4 City May Waive . . . . .
15
4.2
Application for Grant of a Franchise,
Other Than a Cable Act Renewal Franchise . . .
15
4.2.1 Application
15
4.2.2 Factors in Evaluating Application for
Franchise or Renewal of Existing
Franchise . . . . .
16
4.2.3 City Determination . . . . . . . . . .
17
4.2.4 Joint Review . . .
18
4.3
Application for Grant of a Cable Act
Renewal Franchise . . . . . . . . . .
18
4.3.1 Issuance of RFP .. . . . . . . .
18
4.3.2 Administrative Hearing . . . . .
20
4.3.3 Informal Renewal Applications . . . . .
22
4.3.4 Consistency with Cable Act . . . . . . .
22
4.4
Contents of Applications . .
22
4.4.1 Identification of Applicant and Its
Ownership and Control . .
23
4.4.2 Statement of Applicant's Technical
Ability . . . .
23
4.4.3 Statement Of Applicant's Legal
Qualifications . .
23
4.4.4 Statement of Applicant's Financial
Qualifications . . . . .
25
4.4.5 Description of Prior Experience . .
25
4.4.6 Identification of Area To Be Served
25
4.4.7 Description of Physical Facilities
26
4.4.6 Description of Construction of
Proposed System .. . . . . . . .
26
4.4.9 Proposed Rate Structure
26
4.4.10 Demonstration of How Future Community
Needs and Interests Will Be Met . . . .
26
4.4.11 Pro Forma Financial PrOjectiOn6 . .
27
4.4.12 Identification of Area of Overbuild . .
27
4.4.13 Other Information . . . . .
27
4.4.14 Information Requested by City . . . . .
27
4.4.15 Certification of Accuracy
27
4.5
Application for Modification of a Franchise . .
28
4.6
Filing Fees . . . . . . . . . . . . . . .
28
4.7
Public Hearings . . . . . . . . . . . . . . . .
29
5.0 INSURANCE AND INDEMNITY . . . . . . . . . . . . .
30
5.1
Insurance Required . . . . . . . . . .
30
5.2
Qualifications of Sureties . . . . . . . . . .
31
5.3
Evidence of Insurance . . .
31
5.4
Additional Insureds; Prior Notice of
Policy Cancellation . . . . . . . . . . . . . .
31
SS
5.5 Indemnification , , . , 32
5.5.1 Indemnification for Damages and
Equitable Relief 32
5.5.2 Indemnification for Cable Act Claims . . 32
5.5.3 Attorneys' Fees . . . . . . . . . 33
5.6 No Limit of Liability . . . . . . . . . 33
5.7 No Recourse . . . . . . . . . . . . . . . . . 33
6.0 PERFORMANCE BOND . . . . . . .
6.1
. . . . . .
Requirement of Bond . . . . .
6.2
. .
Recovery Under Performance Band . . . . . . . .
6.3
Elimination or ReduCtion of Bond . . . . . .
6.4
.
New Bond for New Project . .
6.5
.
Issuance of Bond; Notice of Cancellation
Required . . . . . . . . . . . . . .
6.6
. . . .
Forfeiture . . . . . . . . . . . . . . . . . .
7.0 SECURITY
FUND
7.1
Establishment of Security Fund . . . . . . .
7.2
.
Use of Fund . . . . . .
7.3
Notification . . . . . . .
7.4
. . . .
Inadequate Fund Balance . . . . . . . . .
7.5
. . .
Replenishment . . . . . .
7.6
. . . . . . . . . .
Disposition . . . . . . . . . . . . . .
7.7
. .
Grantor Rights . ... . . . . . . . . . . . . .
8.0 REMEDIES
8.1 Available Remedies , , ,
8.2 Revocation or Termination of Franchise . . . .
8.2.1 City Right to Revoke Franchise . . . . .
8.2.2 Public Hearing . . . .
8.2.3 Revocation After Assignment for
Benefit of Creditors or Appointment
of Receiver or Trustee . . . . . . .
8.2.4 Procedures On Revocation.
Abandonment, and Termination . . .
8.2.5 Forfeiture for Failure to Comply
With Franchise Obligation . . . . . . .
6.3 Obligation of Compliance . . . . .
6.4 Relation to Insurance and Indemnity
Requirements . . . . . . . . . . . . . . .
9.0 TRANSFERS
9.1 City Approval Required . . . . . . . . . . . .
9.2 Application . . . . . . . . . . . .
9.3 Determination by City . . . . . . . . . . . . .
9.4 Transferee's Agreement . . . . .
9.5 Approval Does Not Constitute Waiver . . . . . .
9.6 Processing Fee . . . . . . . . . . . . . .
10.0 FRANCHISE FEE . . . . . . . . . . .
10.1 Finding . . . . . . .
10.2 Payment to city . . . . . .
10.2.1 City Right to Request Audit . . . . . .-
10.2.2 Maintenance of Records . . . . . . .
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11.0 CONSTRUCTION PROVISIONS
11.1
System Construction Schedule . . . . . . . . .
11.2
construction Standards .
11.2.1
Construction Shall Be In Accordance
With All Applicable Laws .
11.2.2
Wires To Cause Minimum Inconvenience
11.2.3
Installation of Equipment To Be Of
Permanent Nature . . . . . . . . . . .
11.2.4
Antennae . . . . . .
11.2.5
Good Engineering Practices . . . . . .
11.2.6
Safety Practices
11.2.7
No Interference With Other Utilities
11.2.0
Repair of Rights -of -Way .
11.2.9
Removal of System Due To Conditions
in Rights -of -Way . . .
11.2.10
Removal by City Due To Emergency .
11.2.11
Raising or Lowering Wires To Permit
Moving of Buildings . . . . . . .
11.2.12
Authority To Trim Trees . .
11.2.13
Use of Existing Utility Facilities . .
11.2.14
Undergrounding of Cable . . . . .
11.2.15
City Use of Grantee's Poles . . . .
11.2.16
City Approval of Construction . . . . .
11.2.17
Contractors and Subcontractors . . . .
11.3
Publicizing
Proposed Construction Work . . . .
11.4
Continuity
of Service . . . . . . . . . . .
11.4.1
Subscriber Right . . . . . . .
11.4.2
Assurance of Continuous
Uninterrupted Service . . . . . . .
11.4.3
Abandonment of System . . . . . . . . .
11.4.4
Injunctive Relief . . . . . . . . . . .
12.0 SYSTEM
FACILITIES,
EQUIPMENT, AND SERVICES . . . . . .
12.1
Provision
of Service . .
12.2
Full
Video Service to Municipal Buildings;
Facilities
and Equipment . . . . . . . . . . .
12.3
Technical
Standards . . . . . . . . . . . . . .
12.3.1
FCC Standards . .
12.3.2
Facilities Shall Not Interfere With
Others' Signals or Facilities . . . . .
12.4
Proof of Performance Tests . . . . . . . . . .
13.0 CONSUMER PROTECTION PROVISIONS . . . . . .
13.1
Telephone and Office Availability .
13.1.1
Office; Hours of Operation; Telephone .
13.1.2
Telephone Answering Time . . . . . . .
13.1.3
Staff . . . .. . . . . . . . . . .
13.2
Scheduling Work . . . . . . . . . . . . .
13.2.1
Appointments . . . . . . . . .
13.2.2
Missed Appointments . . . . . .
13.2.3
Mobility -Limited Customers . . .
13.2.4
Acknowledgement of and Response
to Customer Requests
. . . . . . . . .
13.2.5
Completion of Work
. . . . . . . . . .
13.2.6
.
work Standards . . . . . . . . .iv
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13.3 Notice to subscribers .
13.3.1 Provision of Information to Subscribers
13.3.2 Disclosure of Price Terms . . . . . . .
13.3.3 Public File . . . . . . . . . . .
13.4 Interruptions of Service . . . . . . . . .
13.5 Billing .
. . . . . . . . . . . . . . . . . .
13.5.1 Proration of F. . . .Bling Statement .
13.5.2 Itemisation . . . . . . . . . .
13.5.3 Payment Due Date . . . . . . . . . .
13.5.4 In Person Payments
13.5.5 No Late Fees for Failures by Grantee
13.5.6 Credit for Lack. of Impairment of
Service . . . . . . . . .
13.6 Disconnectionpowngrades . . . . . . . .
13.6.1 Subscriber Termination
13.6.2 Prompt est; Charges or Downgrade
n Request; Charges . . . .
13.6.3 Subscribes Return of Equipment . . . .
13.6.4 Refund of Security Deposit
13.6.5 Disconnection for Failure To Pay Fee
13.6.6 Disconnection for Damage to System
or Equipment
ectio . . .
13.6.9 Disconnection for Signal Leakage . . .
13.6.8 Removal of Grantee Property . . . . . .
13.9 Changes in Service . . . . . . . . . . . . . .
13.8 Deposits . . . . . . .
13.9 Recording Subscriber Complaints . . . . . . . .
13.10 Remedies for Violators . . . . . . . . .
14.0 RATE REGULATION . . . . . . . . . .
14.1 City May Regulate Rates . . . . . . . .
14.2 Authority CO Adopt Regulations . . . . . . . .
14.3 Rate Change . . . .
14.3.1 Advance Notice of Rate Changes
14.3.2 Explanation of Rate Changes .
14.3.3 Changes Made WithOUt Required
Notice invalid
15.0 RECORDS AND REPORTS
15.1
Open
Books and Records . . . . . . . . . . . .
15.2
Required
Reports . . . . . .
15.2.1
Annual Construction Report . . . . .
15.2.2
Notices Instituting Civil or
Criminal Proceedings . . . . . . .
15.2.3
Bankruptcy Declarations . . . . . .
15.3
Reports
To Be Provided on Request . . . . . . .
15.3.1
Reports Required by FCC . . . . . . . .
15.3.2
Financial Reports . . . . . . . . . . .
15.4
Additional Reports . . . . . . . . . . . . . .
15.5
Records
Required . . . . . .
15.5.1
Records TO Be Maintained . . . . . . .
15.5.2
Additional Information
15.6
Performance Evaluation
15.6.1
City Discretion to Hold Public Sessions
15.6.2
Announcement of Sessions . . . . . . .
15.6.3
Discussion Topics . . . . . . . . .
15.6.4
Grantee Coopefation . . . . . . . . . .
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15.9 voluminous Materials 81
15.8 Retention of Records; Relation to Privacy Rights 82
16.0 RIGHTS OF INDIVIDUALS PROTECTED
16.1 Discriminatory Practices Prohibited . . . . .
16.1.1 Discrimination Prohibited . . . .
16.1.2 Discrimination for Exercise of
Right Prohibited . . . . .
16.1.3 Differential Rates Based on
Subscriber Income Prohibited . . . . .
16.1.4 Rate Preferences Prohibited.. . . . . .
16.2 Equal Employment Opportunity . . . . . . . . .
16.3 Subscriber Privacy . . . . . . . . .
16.3.1 Grantee Shall Protect Subscriber
Privacy . . . .
16.3.2 Selling Subscriber Information
Prohibited . . . . . . . . . . . . . .
17.0 MISCELLANEOUS PROVISIONS
1"1.1 Compliance With Laws . . . . . . . . . . . . .
17.2 Force Majeure .
17.3 Connections to System; Use of Antennae . .
17.3.1 Subscriber Right to Attach Devices
17.3.2 Requiring Disconnection of Antennae
Prohibited . . . . . . . . . . . . .
17.4 Calculation of Time . . . . . . . . . . . . . .
17.5 Severability . . . . . . . . . . . . . . . .
17.6 Captions . . . . . . . . . . . . . . . . . . .
vi
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CHAPTER VI
ARTICLE 18 - CABLE TELEVISION ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BANGOR, MAINE,
ADOPTING THE CITY OF BANGOR CABLE TELEVISION ORDINANCE, WHICH
REVISES THE PROCEDURES AND REQUIREMENTS RELATING TO CABLE
TELEVISION FRANCHISES TO REFLECT CHANCES IN APPLICABLE LAW AND
TO BETTER ENSURE THAT USE OF PUBLIC RIGHTS-OF-WAY BY CABLE
SYSTENS SERVES THE PUBLIC INTEREST.
Be it ordained by the City Council Of the City of Bangor
as follows:
1.0 GENERAL PROVISIONS
1.1 Title. This Ordinance shall be known and may be
cited as the "City of Bangor Cable Television Ordinance."
1.2 Purpose. The City of Bangor finds that the
development of cable television systems has the potential of
greatly benefitting and having a positive impact on the people
of Bangor. Cable technology is rapidly changing, and cable is
expected to play an essential role as part of the City's basis
infrastructure. Cable television systems extensively make use
of scarce and valuable Public Rights -of -Way, in a manner
different from the way in which the general public uses them,
and in a manner reserved primarily for those that provide
services to the public, such as utility companies. The City
finds that public convenience, safety, and general welfare can
1
best be served by establishing regulatory powers vested in the
City or such Persons as the City so designates to protect the
public and to ensure that any Franchise granted is operated in
the public interest. In light of the' -foregoing, the following
goals and the State policies set forth at 30-A M.R.S.A. 5 3008
(1), among others, underlie the provisions set forth in this
Ordinance:
a., Cable should be available to as many City residents
as possible.
b. A Cable System should be capable of accommodating
both the present and reasonably foreseeable future cable -related
needs of the community, to the extent economically feasible.
c. A Cable System should be constructed and maintained
during a Franchise term so that changes in technology may be
integrated to the maximum extent that is economically feasible
into existing system facilities.
d. A Cable System should be responsive to the needs and
Interests of the local Community.
The City intends that all provisions set forth in this
Ordinance be construed to serve the public interest and the
foregoing public purposes, and that any Franchise issued
pursuant to this Ordinance be construed to include the foregoing
findings and public purposes as integral parts thereof.
2.0 DEFINITIONS AND WORD USAGE
For the purposes of this Ordinance, the following terms,
phrases, words, and abbreviations shall have the meanings given
herein, unless otherwise expressly stated. when not
inconsistent with the Context. words used in the present tense
include the future tense; words in the plural number include the
singular number, and words in the singular number include the
plural number; and the masculine gender includes the feminine
gender. The words "shall" and "will" are nandatory, and "may"
is permissive. Unless otherwise expressly stated, words not
defined herein shall be given the meaning set forth in Title 97
of the United States Code. Capter 5, Subchapter V-A U.S.C.
H 521 at sed., as amended. and, if not defined therein, their
Common and ordinary meaning.
2.1 Affiliate. Any Person who owns or controls, is
owned or controlled by, or is under common ownership or control
with a Grantee.
2.2 Basic Cable Service. Any Service Tier that
includes the retransmission of local television broadcast
signals.
2.3 Cable Act. The Cable Communications Policy Act of
1989, 97 U.S.C. H 521 et sed., as amended by the Cable Compe-
tition and Consumer Protect'-on Act of 1992. the Teiecommuni-
cations Act of 1996, and as it may be further amended from time
to time.
2.k Cable Programming Service. Any video programming
provided over a Cable System, regardless of service tier,
including installation or rental of equipment used for the
receipt of such video programming, other than (A) video
programming carried on the Basic Cable Servicetier; and (B)
91
video programming offered on a Per-charnel, or per-program
basis.
2.5 Cable Service. This term shall have the meaning
given it by the Cable Act, as amended.
2.6 Cable System or System. A facility consisting of
a set of closed transmission oaths and associated signal
generation, reception, and control equipment that is designed to
provide cable television service which includes video
programming and which is provided to multiple Subscribers within
the City, but such term does not include (i) a facility that
serves only to retransmit the television signals of one or more
television broadcast stations; (ii) a facility that serves Sub-
scribers without using any Public Right-of-Way; (iii) a facility
of a common carrier which is subject, in whole or in part, to
the provisions of Title II of the Communications Act of 1939,
except that such facility shall be considered a Cable System to
the extent such facility is used in the transmission of video
programming directly to Subscribers, unless the extent of such
use is solely to provide interactive on-demand services; (iv) an
open video system that complies with federal law; Or (v) any
facilities of any electric utility used solely for operating its
electric utility system. A reference to a Cable System refers
to any part thereof, including, without limitation, facilities
located in the interior of a Subscriber's residence or other
premises.
2.7 Com. The City of Bangor, Maine, and any agency,
department, or agent thereof. _
n
2.8 FCC. The Federal Communicatiorys, Commission, its
designee, or any successor governmental entity thereto.
2.9 Franchise. The non-exclusive authorization
granted in accordance with this Ordinance to construct, operate,
and maintain a Cable System along the Public Rights-cf-Way
within the City. Any such authorization, in whatever form
granted, shall not mean or include any license or permit
required for the privilege of transacting and carrying on a
business w_cn_n the City as required by the ordinances and laws
of the City, or for attachixg devices to poles or other
structures, whether owned by the City or a private entity, or
for excavating or performing other work in or along Public
Rights-of-Way.
2.10 Franchise Agreement. A Contract entered into in
accordance with the provisions of this Ordinance between the
City and a Grantee that sets forth, subject to applicable state
and federal law, the terms and Conditions under which a
Franchise will be exercised.
2.11 Franchise Area. The term "franchise area" for any
Franchise granted under this Ordinance shall mean the whole of
the City of Bangor. All new Or renewal Franchise Agreements
granted under this Ordinance shall require the Grantee, within a
reasonable period after the effective date of the Franchise
Agreement_, to extend service to all areas of the City that meet
density requirements to be set out in the Franchise Agreement.
No Franchise or renewal Franchise approved under this Ordinance
shall contain density requirements that are less restrictive
than the density requirements of Franchise Agreements with other
Grantees that are then in'force.
2.12 Grantee. The natural Person(s), partnership(s).
domestic or foreign corporation(s), association(s), joint
venture(s), or organization(S) of any kind which has or have
been granted a cable television Franchise by the City.
2.13 Gross Revenues. Those items within the scope of
the term "gross revenues" as used in the Cable Act, as amended,
including any and all cash, credits, or other consideration of
any kind or nature received directly or indirectly by a Grantee,
an Affiliate of a Grantee, or any Personinwhich a Grantee has
a five percent (5%) or greater financial interest, or by any
other entity that is a cable operator of a Cable System arising
from, attributable to, or in any way derived from the operation
of a Grantee's Cable System to provide Cable Service, including
the facilities associated therewith. Gross Revenues include,
but are not limited to, monthly fees charged Subscribers for any
basic, optional, premium, per -channel, or per -program service;
installation, disconnection, reconnection, and change -in-service
fees; leased channel fees; late fees; payments, or other
consideration received from programmers for carriage of
programming on the System; revenues from converter rentals or
Sales; advertising revenues; barter; revenues from program
guides; and revenues from home shopping channels. "Gross
Revenues" do not include reimbursed expenses unless the expense
is separately claimed. Gross Revenues earned on a System -wide
basis shall be allocated to the City on the basis of the ratio
of the subscribers in the City to the total subscribers in all
the franchising authorities served by. the City. Gross Revenues
.shall be the basis for.computing the Franchise Fee under this
6
Ordinance., Gross Revenues shall not inblude(11 to the extent
consistent with generally accepted accounting principles, actual
bad debt write-offs, provided, however, that all or part of any
such actual bad debt that is written off but subsequently
collected shall be included in Gross Revenues in the period
collected; (ii) the value of free Cable services provided to
Grantee's employees or to the City; (iii) revenues received by
an Affiliate from the Grantee on which the Grantee has already
paid the Franchise Fee; (iv) any taxes on services furnished by
a Grantee which are imposed directly on any Subscriber or user
by the state, City, or other governmental unit and which are
collected by a Grantee on behalf of said governmental unit; and
(v) revenues from the provision of telecommunications services.
2.14 Person. An individual, partnership, association,
joint stock company; organization, corporation, or .any lawful
successor thereto or transferee thereof, but such term does not
include the city.
2.15 Public Right -o£ -Way. The surface, the air space
above the surface, and the area below the surface of any public
street, highway, lane, path, alley, sidewalk, boulevard, drive,
bridge, tunnel, park, parkway, waterway. easement, or similar
property in which the City now or hereafter holds any property
interest, or may lawfully grant the use of, which, consistent
with the purposes for which it was dedicated, may be used for
the purpose of installing and maintaining a Cable System. No
reference herein, or 1n any Franchise Agreement, to a "Public
Right -of -Way" shall be deemed to be a representation or
guarantee by the City that its interest: or other right to
control the use of such property is sufficient to permit its use
for such purposes, and a Grantee shall be deemed to gain only
those rights to use as are properly in the City And as the City
may have the undisputed right and power to give.
2.15 Sale. Any sale, exchange, or barter transaction.
2.17 Service Tier. A package of two or more Cable
Services for which a separate charge is made by the Grantee,
other than a package of premium and pay-per-view services that
may also be sold on a true a is carte basis.
2.16 Subscriber. Any Person who legally receives Cable
Service, whether or not a fee is paid for such service.
2.19 Transfer. Any transaction in which (i) an
ownership or other interest in a Grantee, its Cable System, or
any Person that is a cable operator of the Cable System is
transferred from one Person or group of Persons to another
Person or group of Persons so that control of a Grantee is
transferred; or (ii) the rights or obligations held by a Grantee
under a Franchise Agreement are transferred or assigned to
another Person or group of Persons. Control for these purposes
means working control, in whatever manner exercised. By way of
illustration and not limitation, the addition, deletion, or
other change of any general partner of a Grantee, any person who
owns or controls a.Grantee, or a cable operator of a Cable
System is such achange of control.
2.20 User. A Person or organization utilizing a
channel or equipment and facilities for purposes of producing or
transmitting material, as contrasted with the receipt thereof in
the capacity of a Subscriber. -
3.0 GRANT OF FRANCHISE
3.1 Grant of Franchise. The City may grant one or
more cable television Franchises, and each such Franchise shall
be awarded in accordance with and subject to the provisions of
this Ordinance. In no event shall this Ordinance be considered
a contract between the City and a Grantee.
3.2 Franchise Required. No Person may construct or
operate a Cable System without a Franchise granted by the City
unless otherwise authorized by law, and no Person may be granted
a Franchise without having entered into a Franchise Agreement
with the City pursuant to this Ordinance.
3.3 Franchise Characteristics.
3.3.1 Authority Granted by Franchise. A
Franchise authorizes use of Public Rights -of -Way for installing
cables,- wires, lines, optical fiber, underground conduit, and
other devices necessary and appurtenant to the operation of a
Cable System within a Franchise Area, but does not expressly or
implicitly authorize a Grantee to provide service to, or install
a Cable System on private property without owner consent (except
for use of compatible easements pursuant to Section 621 of the
Cable Act, 47 U.S.C. 4 541(a)(2), or to use publicly or
privately owned conduits without a separate agreement with the
owners.
0
3.3.2 Term of Franchise.- The term of a Franchise
may not exceed fifteen (15) years. -
3.3.3 Non -exclusivity. A Franchise is non-
exclusive and will not explicitly or implicitly preclude the
issuance of other Franchises to operate Cable Systems within the
City, affect the City's right to authorize use of Public Rights -
of -Way by other Persons to operate Cable Systems or for other
purposes as it determines appropriate; or affect the City's
right to itself construct, operate, or maintain a Cable System,
with or without a Franchise.
3.3.4 Franchise Agreement constitutes Contract.
Once a Franchise Agreement has been accepted and executed by the
City and a Grantee, such Franchise Agreement shallconstitutea
contract between the Grantee and the City, and the terms,
conditions, and provisions of such Franchise Agreement, subject
to the Ordinance in effect as of the effective date of such
Franchise Agreement and all other duly enacted and applicable
laws, shall define the rights and obligations of the Grantee and
the City relating to the Franchise. Nothing in this Ordinance
or a Franchise Agreement shall be deemed a waiver of or
restriction on the City's police powers, or a waiver of any of
the terms of any City ordinance regarding the use or management
of the Public Rights -of -Way or intended to protect the public's
safety.
3.3.5 Use of Public Rights-of-WaV. All
privileges prescribed by a Franchise shall be subordinate to any
prior lawful occupancy of the Public Rights -Of -Way, and the City
reserves the right to reasonably designate where a Grantee's
facilities are. to be placed within the Public Rights -of -,Way.
The rights and privileges granted pursuant to a Franchise shall
not be in preference or hindrance to the right of the City, or
,other governmental agency, improvement district or other
authority having jurisdiction, to perform or carry on any public
works or public improvement, and should a Cable System in any
way interfere with the construction, maintenance, or repair of
such public works or improvements, the Grantee shall promptly,
at its own expense, protect or Ielocate its System or part
thereof, as directed by the City or other authority having
jurisdiction
3.3.6 Franchise Personal to Grantee. A Franchise
shall be a privilege that is in the public trust and personal to
the original Grantee. No Transfer of a Franchise shall occur
without the prior consent of the City and unless application is
made by the Grantee and City approval obtained, pursuant to this
Ordinance and the Franchise Agreement; which approval shall not
be unreasonably withheld, provided, however, that the Grantee
may make assignments of collateral to a lender upon reasonable
prior notice to the City. No such assignment of collateral
shall be deemed to permit any person to avoid any obligations
under this Ordinance or a Franchise Agreement.
3.3.7 Exclusive Contracts Unenforceable. A
Franchise holder may not enter into or enforce any exclusive
contract with a Subscriber as a condition of providing or
continuing service.
11
3.4 Grantee Subiect to Other Laws, Police Power.
3.4.1 Compliance with Laws:. A Granteeshall at
all times be subject to and shall comply with all applicable
federal, state, and local laws. A Grantee shall at all times be
subject to all lawful exercise of the police power of the City,
including all rights the City may have under 47 U.S.C. 4 552.
3.4.2 No Waiver of City Rights. No course of
dealing between a Grantee and the City, nor any delay on the
part of the City in exercising any rights hereunder, shall
operate as a waiver of any such rights of the City or
acquiescence in the actions of a Grantee in contravention of
rights except to the extent expressly waived by the City or
expressly provided for in a Franchise Agreement, or other
applicable laws, rules or regulations.
3.4.3 City Has Maximum Regulatory Authority. The
City shall have the maximum plenary authority to regulate Cable
Systems, Grantees, and Franchises as may now or hereafter be
lawfully permissible; except where rights are expressly waived
by a Franchise Agreement, they are reserved, whether expressly
enumerated or not.
3.5 Interpretation of Franchise Terms.
35.1 Provision to City's Benefit Controlling. In
the event of a conflict between this Ordinance as effective on
the effective date of a Franchise Agreement and that Franchise
Agreement, the terms of this Ordinance as effective on the
effective date of that Franchise Agreement shall control, except
as otherwise provided in a Franchise Agreement.
12
3.5.2 Liberal Construction. To the extent
permitted by law, the provisions of this Ordinance and a
Franchise Agreement will be liberally construed in favor of the
City in order to effectuate their purposes and objectives and to
promote the public interest, except as otherwise provided in a
Franchise Agreement.
3.5.3 Governing Law. Except as to matters that
are governed solely by federal law or regulation, a Franchise
Agreement will be governed by and Construed in accordance with
the laws of the State of Maine.
3.6 Operation of a Cable System Without a Franchise.
Any Person who occupies Public Rights -of -Way for the purpose of
operating or constructing a Cable System and who does not hold a
valid Franchise from the City shall be subject to all provisions
of this Ordinance, including but not limited to its provisions
regarding construction and technical standards and Franchise
fees.. In its discretion, the City at any time may require such
Person to enter into a Franchise Agreement within thirty (30)
days of receipt of a written notice by the City that a Franchise
Agreement is required; require such Person to remove its
property and restore the area to a condition satisfactory to the
City within such time period; remove the property itself and
restore the area to a satisfactory condition and charge the
Person the costs thereof; and/or take any other action it is
entitled to take under applicable law, including filing for and
seeking damages under trespass. In no event shall a Franchise
be created unless it is issued by action of the City and subject
to a Franchise Agreement.
13
3.7 Right of Condemnation Reserved. Nothing in this
Ordinance or any Franchise Agreement shall limit any right the
City may have to acquire by eminent domain or otherwise any
property of Grantee.
3.0 Acts at Grantee's Expense. Any act that a Grantee
is or may be required to perform under this Ordinance, a
Franchise Agreement, or applicable law shall be performed at the
Grantee's expense, unless expressly provided to the contrary in
this Ordinance, the Franchise Agreement, or applicable law.
4.0 APPLICATIONSFORGRANT RENEWAL OR MODIFICATION OF
FRANCHISES
4.1 Written Application.,
4.1.1 Application Requirement. A written appli-
cation shall be filed with the City for (i) grant of an initial
Franchise; (ii) renewal of a Franchise under 47 U.S.C. 4 546(a) -
(g); or (iii) modification of a Franchise Agreement pursuant to
this Ordinance or a Franchise Agreement. An applicant shall
demonstrate in its application compliance with all requirements
of this Ordinance, any existing Franchise Agreement held by the
applicant and all applicable laws. _
4.1.2 Acceptability for Filing. To be acceptable
for filing, a signed original of the application shall be
submitted together with twelve (12) copies. The City Manager
may, in combination with neighboring communities, establish a
Joint application procedure, provided that any such procedure
conforms with the standardsofthis Ordinance. The application
14
Must be accompanied by the required application filing fee as
set forth in Article 4.6, conform to any applicable request for
proposals, and contain all required information. All
applications shall include the names and addresses of Persons
authorized to act on behalf of the applicant with respect to the
application.
4.1.3 Applications Available for Public
Inspection. All applications accepted for filing shall be made
available by the City for public inspection in the office of the
City Clerk during normal business hours.
4.1.4 City Mav Waive. The City may waive any of
the provisions of this Section 4.0 by resolution, where
application of the rule would cause manifest injustice, except
for those provisions required by state or federal law. Any
waiver granted shall explain the basis for the waiver and shall
not unduly discriminate against any applicant.
4.2 Application for Grant of a Franchise Other Than a
Cable Act Renewal Franchise.
4.2.1 Application. A Person may apply for an
initial Franchise by submitting an application containing the
information required in Article 4.4 and requesting an evaluation
of that application pursuant to Article 4.2.2. Prior to
evaluating that application, the City shall conduct such
reasonable investigations as are necessary to determine whether
the application satisfies the standards set forth in Article
4.2.2 and may seek additional applications.
15
4.2.2 Factors in Evaluating Application for
Franchise or Reaewal-of-Existing Franchise. In evaluating an
application for a Franchise, the City shall consider, among
other things, the following factors:
a. Whether the applicant has substantially
complied with the applicable law and the material terms of any
existing Cable Franchise from the City.
b. Whether the quality of the applicant's
service under an existing Franchise from the City, including
signal quality, response to customer complaints, billing
practices, and the like, has been reasonable in light of the
needs and interests of the communities served.
c. Whether the applicant has the financial,
technical, and legal qualifications to provide Cable Service.
d. Whether the application satisfies any
minimum requirements established by the City and is otherwise
reasonable to meet the future cable -related needs and interests
of the community, taking into account the cost of meeting such
needs and interests.
e. Whether, to the extent not considered as
part of Article 4.2.2e, the applicant will provide adequate
Public, Educational, and Governmental Access Channel capacity,
facilities, or financial support, consistent with community
needs and interests.
f. Whether issuance of a Franchise is
warranted in the public interest considering the immediate and
future effect on thePublicRights-of-Way and private property
' 16
that would be used by the Cable System, including the extent to
which installation or maintenance as planned would require
replacement of property or involve disruption of property,
public services, or use of the Public Rights -o£ -Way; the effect
of granting a Franchise on the ability of the applicant and its
proposed facilities to meet the cable -related needs and
interests of the community.
g. Whether the applicant or an Affiliate of
the applicant owns or controls any other Cable System in the
City, or whether grant of the application may eliminate or
reduce competition in the delivery of Cable Service in the City.
4.2.3 City Determination. I£ the City finds that
it is in the public interest to issue a Franchise after
Considering the factors set forth above, and subject to the
applicant's entry into an appropriate Franchise Agreement, it
shall issue a Franchise. If the City denies a Franchise, it
will issue within 30 days a written decision explaining why the
Franchise was denied. Prior to deciding whether or not to issue
a Franchise, the City may hold oneormore public hearings or
implement other procedures under Which comments from the public
on an applicant may be received. The City also may grant or
deny a request for a Franchise based on its review of an
application without further Proceedings and may reject any
application that is incomplete. This Ordinance is not intended
and shall not be interpreted to grant any applicant or existing
Grantee standing to challenge the issuance of a Franchise to
another, except as provided by applicable State or Federal laws
or regulations.
17
4.2.4 Joint Review. The- City may elect to
delegate review of an application to a consortium of local
governments or a formally constituted interlocal body of which
the City is a member. Any such entity shall review the
application in accordance with the standards of Section 4.2.2
and make a recommendation to the City. In such a case, the City
Council shall review the recommendation of the designated body
and approve or reject it in accordance with the terms of Section
4.2.3.
4.3 Application for Grant of a Cable Act Renewal
Franchise. Applications for renewal under the Cable Act Shall
be received and reviewed in a manner consistent with Section 626
of the Cable Act, 47 U.S.C. § 546. If neither a Grantee nor the
City activates in a timely manner or can activate the renewal
process set forth in 47 U.S.C. § 546(a) -(g) (including, for
example, if the provisions are repealed), and except as to
applications submitted pursuant to 47 U.S.C. § 546(h), the
provisions of Article 4.2 shall apply and a renewal request
shall be treated the same as any other request for a Franchise.
the following requirements shall apply to renewal requests
properly submitted pursuant to the Cable Act:
4.3.1 Issuance of RFP. If the provisions of 47
U.S.C. § 546(a) -(g) are properly invoked, the City may issue an
RFP after conducting a. proceeding to review the applicant's past
performance and to identify future cable -related community needs
and interests.. The City Administrator, or the Administrator's
designee, shall establish deadlines and procedures for
responding to the RFP, may seek additional information from the
18
applicant. and shall establish deadlines for the submission of
that additional information. Following,reCeipt of the appli-
cation responding to the RFP (and such additional information as
may be provided in response to requests), the City will
determine that the Franchise should be renewed, or make a
preliminary assessment that the Franchise should not be
renewed. That determination shall be in accordance with the
time limits established by the Cable Act. The preliminary
determination shall be made by Order. If the City determines
that the Franchise should not be renewed, and the applicant that
submitted the renewal application notifies the City, either in
its RFP response or within ten (10) working days of the
preliminary assessment, that it wishes to pursue any rights to
an administrative proceeding it has under the Cable Act, then
the City shall commence an administrative proceeding after
providing prompt public notice thereof, in accordance with the
Cable Act. If the City decides preliminarily to grant renewal,
it shall prepare a final Franchise Agreement that incorporates,
as appropriate, the commitments made by the applicant in the
renewal application., If the applicant accepts the Franchise
Agreement, and the final agreement is ratified by the City, the
Franchise shall be renewed. If the Franchise Agreement is not
so accepted and ratified within the time limits established by
47 U.S.C. S 546(c)(1), renewal shall be deemed preliminarily
denied, and an administrative proceeding commenced if the
applicant that submitted the renewal application requests it
within ten (10) days of the expiration of the time limit
established by 47 U.S.C. 5 546(c)(1).
19
4.3.2 Administrative Hearing. If an adminis-
trative hearing is commenced pursuant to 47 U.S.C. 4 546
(c), the applicant's renewal application shall be evaluated
considering such matters as may be considered consistent with
federal law. The following procedures shall apply:
a. The City Council shall, by order, appoint
an administrative hearing officer or officers (referred to
hereafter as "hearing officer"). The City Council may appoint
itself as hearing officer.
I. The hearing officer shall establish a
schedule for proceeding which allows for documentary discovery
and interrogatory responses, production of evidence, and cross-
examination of witnesses. Depositions shall not be permitted
unless the party requesting the deposition shows that
documentary discovery and interrogatory responses will not
provide it an adequate opportunity torequire the production of
evidence necessary to present its case. The hearing officer
shall have the authority to require the production of evidence
as the interests of justice may require, including to require
the production of evidence by the applicant that submitted the
renewal application and any entity that owns or controls or is
owned or controlled by such applicant directly. or indirectly
The hearing officer may issue protective orders to the extent
permitted under applicable State law. Any order may be enforced
by a court of competent jurisdiction or by imposing appropriate
sanctions in the administrative hearing.
c. The hearing officer may conduct a pre -
hearing conference and establish appropriate prehearing
20
Procedures.
Intervention by non-parties is
not
authorized
except to the
extent permitted by the Cable
Act.
-
d. The hearing officer may require the City
and the applicant to submit prepared testimony prior to the
hearing. Unless the parties agree otherwise, the applicant
shall present evidence first, and the City shall present
evidence second.
e. Any reports or the transcript or summary of
any proceedings conducted pursuant to 47 U.S.C. 4 546(a) shall
for purposes of the administrative hearing be regarded no
differently than any other evidence. The City and the applicant
must be afforded full procedural protection regarding evidence
related to these proceedings, including the right to refute any
evidence introduced in those proceedings or sought to be
introduced by the other party. Both shall have the opportunity
to submit additional evidence related to issues raised in the
proceeding conducted pursuant to 47 U.S.C. 5 546(a).
f. Following Completion of any hearing, the
hearing officer shall require the parties to submit proposed
findings of fact with respect to the matters that the city is
entitled to consider in determining whether renewal should be
granted. Based on the record of the hearing, the hearing
officer shall then prepare written findings with respect to
those matters, and submit those findings to the City Council and
to the parties (unless the hearing officer is the City Council,
in which case the written findings shall constitute the final
decision of the City, if permitted by applicable laws or rules.
21
g. If the hearing officer is not the City
Council, the parties shall have thirty x(30) days from the date
the findings are submitted to the City Council to file
exceptions to those findings. The City Council shall thereafter
issue a written decision granting or denying the application for
renewal, consistent with the requirements of the Cable Act and
based on the record of .such proceeding. A Copy of that decision
of the City Council shall be provided to the applicant.
h. The proceeding shall be conducted with due
speed.
i. In conducting the proceeding, and except as
inconsistent with the foregoing, the hearing officer will follow
the Maine Administrative Procedures Act or the successor
statutes thereto unless otherwise governed by Federal law or
regulations. The hearing officer may request that the City
Council adopt additional procedures and requirements as
necessary in the interest of justice.
4.3.3 Informal Aengwal Applications. This
Article does not prohibit any Grantee from submitting an
informal renewal application pursuant to 47 U.S.C. 4 546(h),
which application may be, granted or denied in accordance with
the provisions of 47 U.S.C. § 546(h).
4.3.4 Consistency With Cable Act. The provisions
of this Ordinance shall be read and applied so that they are
consistent with Section 626 of the Cable Act, 47 U.S.C. § 546.
4.4 Contents of Applications. If issued by the City,
an AFP for the grant of a renewal Franchise under 47 U.S.C.
§ 546(c) shall require, and any application for an initial or
22
renewal franchise (other than an application submitted pursuant
to 47 U.S.C. 4 546(h)) shall contain, at a minimum, the
following information:
4.4.1 Id2ntilication of Avelicant and Its
Ownership and Control. Name and address of the applicant and
identification of the ownership and control of the applicant,
including: the names and addresses of the ten (10) largest
holders of an ownership interest in the applicant and
controlling Affiliates of the applicant, and all Persons with
five (5) percent or more ownership interest in the applicant and
its Affiliates; the Persons who control the applicant and its
Affiliates; all officers and directors of the applicant and its
Affiliates; and any other business affiliation and Cable System
ownership interest of each named Person.
4.4.2 Sta[emeyc of Applicant's Technical Abili tv.
A demonstration of the applicant's technical ability to
construct and/or operate the proposed Cable System, including
identification of key personnel.
4.4.3 Statement of Applicant's Legal Ouali-
flcations. A demonstration. of the applicant's legal
qualifications to construct and/or operate the proposed Cable
System, including but not limited to a demonstration that the
applicant meets the following criteria:
a. The applicant must not have submitted an
application for an initial or renewal Franchise to the City,
which was denied on the ground that the applicant failed to
propose a System meeting the -cable -related needs and interests
of the community, or as to which any challenges to such
23
licensing decision were finally resolved adversely to the
applicant, within one (1) year preceding the submission of the
application. .,
b. The applicant must not have had any cable
television Franchise validly revoked by any licensing authority
within three (3) years preceding the submission of the
application.
C. The applicant must have the necessary
authority under Maine law to operate a Cable System within
Maine.
d. The applicant shall not be issued a
Franchise if it may not hold the Franchise as a matter of
federal law. An applicant must have, or show that it is
qualified to obtain, any necessary federal approvals or waivers
required to operate the System proposed.
e. The applicant shall not be issued a
Franchise if, at any time during the ten (10) years preceding
the submission of the application, the applicant was convicted
of any act or omission of such character that the applicant
cannot be relied upon to deal truthfully with the City and the
Subscribers of the Cable System, or to substantially comply with
its lawful obligations under applicable law, including
obligations under consumer protection laws and laws prohibiting
anticompetitive acts, fraud, racketeering, or other similar
conduct.
f. The applicant shall not be issued a
Franchise if it files materially misleading information in its
application or intentionally withholds information that the
applicant lawfully is required to provide.
pa
g. The applicant shall not be issued a
Franchise if an elected official of the City holds a controlling
Interest in the applicant or an Affiliate of the applicant.
Notwithstanding the foregoing, the City shall provide an
opportunity to An applicant to show that it would be
inappropriate to deny it a Franchise under Article 4.4.3.b or e,
by virtue of the particular circumstances surrounding the matter
and the steps taken by the applicant to cure all harms flowing
therefrom and prevent their recurrence, the lack of involvement
of the applicant's principals, or the remoteness Of the matter
from the operation of cable television Systems.
4.4.4 Statement of Applicant's Financial
Oualifications. A statement prepared by a certified public
accountant regarding the applicant's financial ability to
complete the construction and operation of the Cable System
proposed.
4.4.5 Pesciipilon of Prior Experience. A
description of the applicant's prior experience in Cable System
ownership, construction, and operation, and identification of
communities in which the applicant or any of its principals
have, or have had, a cable Franchise or license or any interest
therein, provided that, an applicant that holds a Franchise for
the City and is seeking renewal of that Franchise need only
provide this information for other communities where its
Franchise was scheduled to expire in the two (2) calendar years
prior to and after its application was submitted.
4.4.6 Idem"Zication of Area To Beryd.
Identification of the area of the City to be served by the
25
proposed Cable System, including a description of the proposed
Franchise Area's boundaries. All Grantees shall be bound and
required to serve the same areas within the City.
4.4.7 Description of Physical Facilities. A
detailed description of the physical facilities proposed,
including channel capacity, technical design, performance
characteristics, headend, and access facilities.
4.4.8 Description of Construction of Proposed
System. where applicable, a description of the construction of
the proposed System, including an estimate of plant mileage and
its location, the proposed construction schedule, a description,
where appropriate, of how services will be converted from
existing facilities to new facilities, and information on the
availability of space in conduits including, where appropriate,
an estimate of the cost of any necessary rearrangement of
existing facilities.
4.4.9 Proposed Rate Structure. The proposed rate
structure, including projected charges for each Service Tier,
installation, converters, and other equipment or services.
4.4.10 Demonstration C Needs
and Interests Will Be Met. A demonstration of how the applicant
will reasonably meet the future cable -related needs and
interests of the community, including descriptions of how the
applicant will meet the needs described in any recent community
needs assessment conducted by or for the City, and how the
applicant will provide adequate Public, Educational, and Govern-
mental Access Channel capacity, facilities, or financial support
26
to meet the community's needs and interests. The City Manager
may, in coordination with neighboring communities, establish
procedures for conducting a joint needs assessment.
4.4.11 Prg Forma Financial Proiections. Pro forma
financial projections for the proposed Franchise term, including
a statement of projected income, and a schedule of planned
capital additions, with all significant assumptions explained in
notes or supporting schedules.
4.4.12 Identification of Area of Overbuild.- If
the applicant proposes to provide Cable Service to an area
already served by an existing cable Grantee, the identification
of the area where the overbuild would occur, the potential
_Subscriber density in the are that would encompass the
overbuild, and the ability of the Public Rights -of -Way and other
property that would be used by the applicant to accommodate an
additional System.
4.4.13 Other Information. Any other information
as may be reasonably necessary to demonstrate compliance with
the requirements of this Ordinance.
4.4.14 Information Reauested by City. Information
that the City may reasonably request of the applicant that is
relevant to the City's consideration of the application.
4.4.15 Certification of Accuracy. An affidavit or
declaration of the applicant or authorized officer certifying
the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments, and
certifying that the application meets all federal and state law
requirements.
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4.5 Applacation for Modificationf g Franchise.An
application for modification of a Franchise Agreement shall
include, at minimum, the following information:
a. The specific modification requested;
b. The justification for the requested
modification, including the impact of the requested modification
on Subscribers, and the financialimpact on the applicant if the
modification is approved or disapproved, demonstrated through,
inter alfa, submission of financial pro formas;
c. A statement whether the modification is
sought pursuant to Section 625 of the Cable Act, 47 U.S.C.
4 545, and, if so, a demonstration that the requested
modification meets the standards set forth in 47 U.S.C. 4 545;
d. Any other information that the applicant
believes is necessary for the City to make an informed determi-
nation on the application for modification; and
e. An affidavit or declaration of the
applicant or authorized officer certifying the truth and
accuracy of the information in the application, and certifying
that the application is consistent with all federal and state
law requirements.
4.6 Filing Fees. To be acceptable for filing, an
application submitted after the effective date of this Ordinance
shall be accompanied by a filing fee in the following amount to
cover costs incidental to the awarding or enforcement of the
Franchise, as appropriate:
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a. For an initial Franchise: - $ 500
b. For renewal of a Franchise: - S 500
C. For modification of a
Franchise Agreement $ 500
The City may also elect to share the casts of reviewing
an application with other communities served by the system of
which an existing or proposed cable system in the City is a
part. In that case, the filing fees shown above shall not
apply, and shall be replaced with combined filing fees for all
communities with whom the City is sharing expenses. The
combined filing fees shall be $7,000 for an initial grant or a
modification. and $7,000 for a renewal.
Combined filing fees shall be prorated among the
participating communities on the basis of the number of
residents in each community as of the most recent U.S. Census,
or allocated according to some other mutually agreeable method.
Application fees for franchise renewals may be increased
as necessary to recover the City's additional cost of conducting
any hearings required under 47 U.S.C. 4 546(a) through (g), if
the Grantee has invoked that procedure in its renewal
application.
4.7 Public Hearincs. An applicant shall be notified
in writing at least 10 calendar days in advance of any public
hearings held in connection with the evaluation of its
application and shall be given an opportunity to be heard. In
addition, prior to the issuance of a Franchise, the City shall
provide for the holding of a. public hearing within the proposed
Franchise Area, following reasonable notice to the Public, at
29
which every applicant and its applicatibns-3hali be examined and
the public and all interested parties afforded a -reasonable
opportunity to be heard. Reasonable notice to the public shall
include causing notice of the, time and place of such hearing to
be published in a newspaper of general .circulation in the
proposed Franchise Area once a week for two consecutive weeks.
The first publication shall be not less than fourteen (14) days
before the day of the hearing. Nothing herein shall be deemed
to prevent or limit communities in which the applicant has
requested grant or renewal of a franchise from holding joint
public hearings in a location reasonable accessible to residents
of each community which is the subject thereof.
5.0 INSURANCE AND INDEMNITY.
5.1 Insurance Required. A Grantee shall maintain, and
by its acceptance of a Franchise specifically agrees that it
will maintain, throughout the entire length of the Franchise
period, such insurance as will protect the City and elected
officials, employees and agents from any claims that may arise
directly or indirectly or result from its acceptance of the
Franchise or its activities under the Franchise, whether such
activities are performed by the Grantee, or by anyone for whose
acts the Grantee may be liable, including, but not limited to,
the following:
a. Workers' compensation, including disability
benefits and any other legally required employee benefits,
meeting all statutory amounts;
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b. Property insurance, all risk, replacement cost
basis, on all of the Grantee's assets:
c. General liability insurance, in the following
minimum amounts:
Bodily injury or death
Primary insurance $1,000.000 per person
$1,000.000 per occurrence
Umbrella insurance $5,000,000
Property damage $1,000,000
The City may review these amounts no more than once a year and
may require reasonable adjustments to then consistent with the
public interest. The Franchise Agreement may specify the
procedures to be followed in the event that the Grantee objects
to an increase in a policy limit and the parties are unable to
agree on a mutually acceptable amount.
5.2 Qualifications of Sureties. All insurance
policies shall be with sureties qualified to do business in the
State of Maine, with an A or better rating of insurance by
Best's Key Rating Guide, Property/Casualty Edition, and in a
form acceptable to the City.
5.3 Evidence of insurance. A Grantee shall keep on
file with the City current certificates of insurance. A Grantee
shall provide the City with conies of all insurance policies in
effect during the franchise period upon the written request of
the City.
5.4 Additional Insureds' Prior Notice Of P011CV
Cancellation. All general liability insurance policies shall
name the City, elected officials, officers, boards, commissions,
31
commissioners, agents, and employeesas-additional insureds and
shall further provide that any cancellation or reduction in
coverage shall not be effective unless thirty (30) days' prior
written notice thereof has been given to the City. A Grantee
shall not cancel any required insurance policy without
submission of proof that the Grantee has obtained alternative
insurance satisfactory to the City which complies with this
Ordinance.
5.5 Indemnification.
5.5.1 Indemnification for Damages and Eauitable
Rte. A Grantee shall, at its sole cost and expense,
indemnify, hold harmless, and defend the City, its inhabitants,
elected officials, officers, boards, commissions, commissioners,
agents, and employees, against any and all claims, suits, causes
of action, proceedings, and judgments for damages or equitable
relief 'arising out of the construction, maintenance, or
operation of its Cable System; copyright infringements or a
failure by the Grantee to secure consents from the owners,
authorized distributors, or Grantees of programs to be delivered
by the Cable System; the conduct of the Grantee's business in
the City; or in any way arising out of the Grantee's enjoyment
or exercise of a Franchise granted hereunder, regardless of
whether the act or omission complained of is authorized,
allowed, or prohibited by this Ordinance or a Franchise
Agreement. -
5.5.2 indemnification for Cable Act Claims. A
Grantee shall, at its sole cost and expense, fully indemnify,
defend, and hold harmless the City, and in its capacity as such,
32
the officers, agents, and employees thereof, from and against
any and all claims, suits, actions, liability, and Judgments for
damages or otherwise subject to Section 638 of the Cable Act, 47
U.S.C. S 558, arising out of or alleged to arise out of the
installation, construction, operation, or maintenance of its
System, including but not limited to any claim against the
Grantee for invasion of the right of privacy, defamation of any
Person, firm or corporation, or the violation or infringement of
any copyright, trade mark, trade name, service mark, or patent,
or of any other right of any Person, firm or corporation. This
indemnity does not apply to programming carried on any channel
set aside for public, educational, or government use, or
channels leased pursuant to 47 U.S.C. 4 532, unless the Grantee
was in any respect engaged in determining the editorial content
of the program, or adopts a policy of prescreening programming
for the purported purpose of banning indecent or obscene
programming.
5.5.3 Attorneys' Fees. The indemnity provision
includes, but is not limited to, the City's reasonable
attorneys' fees incurred in defending against any such claim,
suit, action or proceeding.
5.6 No Limit of Liability. Neither the provisions of
this Article nor any damages recovered by the City shall be
construed to limit the liability of a Grantee for damages under
any Franchise issued hereunder.
5.7 No Recourse. Without limiting such immunities as
it may have under applicable -law, the City shall not be liable
33
to the Grantee for any damages or loss that the Grantee may
suffer as the result of the City's exercise of its lawful
authority pursuant to this Ordinance, a Franchise Agreement, or
other applicable law.
6.0 PERFORMANCE BOND
6.1 Reauirement Of Bond. Prior to any construction,
rebuild or upgrade of the Cable System requiring work in the
Public Rights -of -Way other than installation of aerial
facilities and utility poles, a Grantee shall establish in the
City's favor an irrevocable performance bond in an amount
specified in the Franchise Agreement or otherwise determined as
reasonable by municipal officers as necessary to ensure the
Grantee's faithful performance of the. construction, upgrade, or
other work. The amount of such performance bond shall not
exceed the lesser of ten (10) percent of the total cost of the
work being done in the Public Right -of -Way other than
installation of aerial facilities and utility poles, or Fifty
Thousand Dollars ($50,000.00).
6.2 RecaverV,Under PerformanceSond. In the event
that a Grantee subject to such a performance bond fails to
complete the Cable System construction, upgrade, or other work
1n the Public Rights -of -Way in a safe, timely (subject to the
force majeure provision of Section 1].2), and competent manner
in accordance with the provisions of a Franchise Agreement,
there shall be recoverable, jointly and severally from the
principal and surety of the bond, any damages or loss suffered
by the City as a result, including the full amount of any
34
compensation, indemnification, or cost Of removal or abandonment
of any property of the Grantee, or the cOst.of completing or
repairing the System construction, upgrade, or other work in the
Public Rights -of -Way, plus a reasonable allowance for attorneys'
fees, up to the full amount of the bond. The City may also
recover against the bond any amount recoverable against the
Security fund required under Article 7.0 0£ this Ordinance,
where such amount exceeds that available under the security
fund.
6.3 Elimination or Reduction of Bond. Any performance
bond shall remain in place for one full year after completion to
the satisfaction of the City of the work in the Public
Right-of-way.
6.4 New Bond for New Piolect. The City may subse-
quently require a new bond, for any subsequent construction, or
other work in the Public Rights -of -Way other than installation
of aerial facilities and utility poles, whose cost exceeds an
amount specified in a Franchise Agreement. In the event a
Grantee fails to complete the work secured by such a new
performance bond in a Safe, timely and competent manner, there
shall be recoverable, jointly and severally from the principal
and surety of the bond, any damages or loss suffered by the City
as a result, including the full amount of any compensation,
indemnification, or cost of removal or abandonment of any
property of the Grantee, or the cost Of completing or repairing
the System construction, upgrade, or other work in the Public
Rights -of -Way, plus a reasonable allowance for attorneys' fees,
up to the full amount of the bond. The City may also recover
35-
against the bond any amount recoverable -against thesecurity
fund required under Article 7.0 of this„Ordinance, where such
amount exceeds that available under the security fund. In any
event, the total amount of the bond shall not exceed the lesser
ten (10) percent of the cost of the work being done in the
Public Right -of -Way, or Fifty Thousand Dollars (550,000),
6.5 Issuance of Bond, Notice f Cancellation d.
Any performance bond shall be issued by a surety qualified to do
business in the State of Maine, and having an A -I or better
rating of Insurance in Best's Key Rating Guide, Property/
Casualty Edition; shall be subject to the approval of the City;
and shall contain the following endorsement:
"This bond may not be canceled, or
allowed to lapse, until sixty (60) days
after notice t0 the City, by Certified
mail, return receipt requested, of a.
written notice from the issuer of the
bond of intent to cancel or not to
renew."
6.6 Forfeiture. The total amount of any outstanding
bond shall be forfeited in favor of the City in the event that:
a. The Grantee abandons the Cable System or any
part thereof at any time during the term of the Franchise; or
b. The Grantee fails to purchase and maintain
insurance as required by Article 5.0 hereof; or
C. The Franchise is revoked as provided in
Article 8.2 hereof.
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7.0 SECURITY FUND
7.1 Establishment of Security Fund.
(a) A Franchise Agreement may provide that, prior
to the Franchise's becoming effective, the Grantee shall post
with the City a cash security deposit to be used as a security
fund to ensure the Grantee's faithful performance of and
compliance with all provisions of this Ordinance, the Franchise
Agreement, and other applicable laws, and Compliance with all
orders, permits, and directions of the City or any agency
thereof having jurisdiction over the Grantee's acts or defaults
under the Franchise, and the payment by the Grantee of any
claims, liens, fees, Or taxes due the City which arise by reason
of the construction, operation or maintenance of the System.
The amount of any security fund shall be specified in a
Franchise Agreement.
(b) In lieu of a cash security fund, a Grantee
may agree to file and maintain with the City an irrevocable
letter of credit with a bank having an office in the State of
Maine in the amount specified in the preceding paragraph to
serve the same purposes as set forth therein. Said letter of
credit shall remain in effect for the full term of the Franchise
plus an additional six (6) months thereafter. The Grantee and
its surety shall be jointly and severally liable under the terms
of the letter of credit for the Grantee's failure to enforce its
faithful performance of and compliance with all provisions of
this Ordinance, the Franchise Agreement, and other applicable
law, and compliance with all orders, permits, and directions of
the City, and the payment by the Grantee of any claims, liens,
37
fees, or taxes due the City which arise by reason of the
construction, operation, or maintenance of the System. The
letter of credit shall provide for thirty (30) days' prior
written notice to the City of any intention on the part of the
Grantee to cancel, fail to renew, or otherwise materially alter
its terms. Neither the filing of a letter of credit with the
City, nor the receipt of any damages recovered by the City
thereunder, shall be construed to excuse faithful performance by
the Grantee or limit the liability of the Grantee under the
terms of its Franchise for damages, either to the full amount of
the letter of credit or otherwise.
7.2 Use of Fund. if a Grantee fails to make timely
payment to the City of any amount due as a result of Franchise
requirements, fails to make timely payment to the City of any
amounts due under a Franchise Agreement or applicable law, fails
to make timely payment to the City of any taxes lawfully due, or
fails to compensate the City for any damages, costs, or expenses
the City suffers or incurs by reason of any act or omission of
the Grantee in connection with its Franchise Agreement, the City
may withdraw the amount thereof from the security fund. To
invoke the provisions of this Article, the City shall give the -
Grantee written notice of the default in the Grantee's
performance. if within thirty (30) calendar days following such
written notice from the City to the Grantee, the Grantee has not
remedied the default to the satisfaction of the City, the City
may proceed to withdraw the amount in question from the security
fund, provided that, if by its nature the default cannot be
remedied within thirty (30) days and the Grantee has
FPI
demonstrated to the satisfaction of the City that it is making a
continuing good faith effort to remedy Che default, the City
shall not draw on the security fund.
7.3 Notification. Within ten (10) business days of a
withdrawal from the security fund, the City shall mail, by
certified mail, return receipt requested, written notification
of the amount, date, and purpose of such withdrawal to the
Grantee.
7.9 Inadequate Fund Balance. If at the time of a
withdrawal from the security fund by the City, the amount of the
fund is insufficient to provide the total payment towards which
the withdrawal is directed, the balance of such payment shall
continue as the obligation of the Grantee to the City until it
1s paid.
7.5 Replenishment. No later than thirty (30) days
after mailing of notification to the Grantee by certified mail,
return receipt requested, of a withdrawal under the security
fund, the Grantee shall deliver to the City for deposit in the
security fund an amount equal to the amount so withdrawn.
Failure to make timely delivery of such amount to the City shall
constitute a material violation of the Franchise.
7.6 Disposition. Upon termination of the Franchise
under conditions other than those stipulating forfeiture of the
security fund, the balance then remaining in the security fund
shall be withdrawn by the City and paid to the Grantee within
ninety (90) days of such termination, provided that there is
then no outstanding material default on the part of the Grantee.
39
7.7 Grantor Rights. The rights reserved to the City
with respect to Articles 5.0, 6.0, and 7.0 hereof are in
addition to all other rights of the City, whether reserved by
this Ordinance or authorized by other law or a Franchise
Agreement, and no action, proceeding, or exercise of a right
with respect to such sections shall affect any other right the
City may have.
8.0 REMEDIES
8.1 Available Remedies. In addition to any other
remedies available at law or equity, the City may pursue the
following remedies in the event a Grantee or any other person
violates this Ordinance, its Franchise Agreement, or applicable
state or federal law.
a. Seek a determination from a court of
competent jurisdiction that a provision of this Ordinance has
been violated. If such a violation is found to exist by the
Court the minimum fine imposed shall be $50 and the maximum fine
imposed per violation shall be $250. Each day the violation is
found to exist shall constitute a separate violation for which
the above -indicated fine may be assessed. Any violation found
to exist on the day of trial may be found, at a minimum, to have
existed from the filing date of the complaint until the day of
trial and the fine assessed accordingly, unless Grantee
affirmatively proves that said violation did not exist during
any part of or all of the aforementioned time period. If the
Grantee is found by the Court to have been adjudicated in
violation of any provision of this Ordinance on more than one
40
occasion within two years, whether or not a violation of the
same provision of this Ordinance, the minimum fine per violation
shall be $100 .and the maximum fine per violation shall be $500.
P. Seek legal or equitable relief from any
court of competent jurisdiction.
'c. Apply any remedy provided for in a
Franchise Agreement, including enforcing provisions, if say.
8.2 Revocation or Termination of Franchise.
8.2.1 City Right to Revoke Franchise. The City
shall have the right to revoke the Franchise for a Grantee's
substantial failure to construct or .operate the Cable System as
required by this Ordinance or a Franchise Agreement, for
defrauding or attempting to defraud the City or Subscribers, if
the Grantee is declared bankrupt, or for any other material
violation of this Ordinance or material breach of a Franchise
Agreement. To invoke the provisions of this Article, the City
shall give the Grantee written notice of the default in its
performance. If within thirty (30) Calendar days following such
written noti<e from the City to the Grantee, the Grantee has not
taken corrective action or corrective action is not being
actively and expeditiously pursued to the satisfaction of the
City. the City may give written notice to the Grantee of its
intent to revoke the Franchise, stating its reasons; provided
that no opportunity to cure shall be provided where the Grantee
has defrauded or attempted to defraud the City or its
Subscribers, or in the event the Grantee is declared bankrupt.
In the case of a fraud or attempted fraud, the Franchise may be
revoked after the hearing.requ_ired under Article 8.2.2;
41
revocation for bankruptcy shall be governed by Article 8.2.3.
8.2.2 Public Hearing. Prior t0 revoking a
Franchise, the City shall hold a public hearing, on thirty (30)
calendar days' written notice, at which time the Grantee and the
public shall be given an opportunity to be heard. Following the
public hearing, the City may determine to revoke the Franchise
based on the information presented at the hearing, and other
information of record. If the City determines to revoke a
Franchise, it shall issue a written decision setting forth the
reasons for its decision. A copy of such decision shall be
transmitted t0 the Grantee.
8.2.3 Revocation £ for f' f
Creditors f Faceiver or Trustee. To the extent
provided by law, any Franchise may, at the option of the City
following a public hearing, be revoked one hundred twenty (120)
calendar days after an assignment for the benefit of creditors
or the appointment of a receiver or trustee to take over the
business of the Grantee, whether in a receivership, -
reorganization, bankruptcy assignment for the benefit of
creditors, or other action or proceeding, unless within that one
hundred twenty (120) day period:
a. Such assignment, receivership, or trustee-
ship has been vacated; or
b. Such assignee, receiver, or trustee has
fully complied with the material terms and conditions of this
Ordinance and a Franchise Agreement and has executed an
agreement, approved by a court of competent jurisdiction,
assuming and agreeing to be bound by the terms and conditions
92
of this ordinance and a Franchise Agreement, and such other
conditions as may be established or as are.tequired under
Article 13.0 of this Ordinance.
C. In the event of foreclosure or other
judicial sale of any of the facilities, equipment, or property
of a Grantee, the City may revoke the Franchise, following a
public hearing before the City, by serving notice on the Grantee
and the successful bidder at the sale, in which event the
Franchise and all rights and privileges of the Franchise will be
revoked and will terminate thirty (30) calendar days after
serving such notice, unless the City has approved the Transfer
of the Franchise to the successful bidder, and the successful
bidder has covenanted and agreed with the City to assume and be
bound by the terms and conditions of the Franchise Agreement and
this Ordinance, and such other conditions as may be established
or as are required pursuant to Article 9.0 of this Ordinance.
8.2.4 Procedures t' Abandonment, and
Termination. If the City revokes a Franchise, or if for any
other reason a Grantee abandons, terminates, or fails to operate
or maintain service to its Subscribers, the following procedures
and rights are effective:
a. The City may require the former Grantee to
remove its facilities and equipment located in the Public
Rights -of -Way and on public premises at the former Grantee's
expense. If the former Grantee fails to do so within a
reasonable period of time, the City may have the removal done at
the former Grantee's and/or surety's expense. The foregoing
provisions shall not apply it, within three (3) months after
43
expiration, termination or revocation of the Franchise, the
Grantee obtains certification from the PCC -to operate an open
video system or any other federal or state certification to
provide telecommunications services.
b. In the event of revocation, the City, by
written order, may acquire ownership of the Cable System at not
less than fair market value, determined on the basis of the
cable system valued as a going concern, but with no value
allocated to the franchise itself, as specified at 47 U.S.C.
H 547(a)(1).
c. If a Cable System is abandoned by a Grantee
or the Franchise otherwise terminates, the ownership of all -
portions of the Cable System in the Public Rights -of -Way shall
revert to the City and the City may sell, assign, or Transfer
all or part, of the assets of the System. If a Grantee abandons
a portion of its System, the ownership of the abandoned portions
of the Cable System in the Public Rights -of -Way shall revert to
the City and the City may sell, assign or transfer the abandoned
facilities. A Cable System or a portion thereof shall be deemed
"abandoned" if a Grantee (i) gives the City written notice of
its decision to abandon the System or the portion in question;
or (11) fails to provide Cable Service to Subscribers served by
the System or the relevant portion thereof on a continuous basis
for a period of thirty (30) consecutive calendar days or more.
0.2.5 Forfeiture for FailFailUK9 to ComplyWith
Franchise Obligation. Notwithstanding any other provision of
this Ordinance other than the force ma}eure clause of Section
17.2, where the City has issued a Franchise specifically
44
conditioned in the Franchise Agreement on the completion of
construction, System upgrade, or other specific obligation by a
specified date, failure of the Grantee to complete such
construction or upgrade, or to comply with such other specific
obligations as required, will result in the automatic forfeiture
of the Franchise without further action by the City where it is
so provided in the Franchise Agreement, unless the City, at its
discretion and for good cause demonstrated by the Grantee.
grants an extension of time.
8.3 Obligation of Compliance. The City's exercise of
one remedy or a Grantee's payment of liquidated damages or
penalties shall not relieve a Grantee of its obligations to
comply with its Franchise. In addition, the City may exercise
any rights it has at law or equity.
8.4 Relation to Insurance and Indemnity Requirements.
Recovery by the City of any =aunts under insurance, the
performance bond, the security fund or letter of credit, or
otherwise does not limit a Grantee's duty to indemnify the City
in any way; nor shall such recovery relieve a Grantee of its
obligations under a Franchise, limit the amounts owed to the
City, or in any respect prevent the City from exercising any
other right or remedy it may have; provided that this section
shall not be interpreted as permitting the City to recover twice
for the same damage. In addition, any civil fine imposed
pursuant to Section 8.1(a) or other applicable law shall not be
treated as a recovery for purposes of this section.
45
9.0 TRANSFERS
9.1 City Approval Reanired. No 'Transfer shall occur
without prior approval of the City; provided, however, that no
such approval shall be required for Transfers resulting from the
transfer of ownership interests between existing holders of
ownership interests in a Grantee, where such holders were also
holders of ownership interests in the Grantee at the time of the
original grant of the Franchise to the Grantee.
9.2 Application. An application for a Transfer shall
provide complete information on the proposed transaction,
including details on the legal, financial, technical, and other
qualifications of the transferee, and on the potential impact of
the Transfer on Subscriber rates and services. At a minimum,
the information required under federal law and in Article
4.4.1-4, 4.4.9-11, 4.4.-13, and 4.4.15 0£ this Ordinance shall
be provided with respect to the proposed transferee.
9.3 Determination by City. In making a determination
as to whether to grant, deny, or grant Subject to conditions an
application for a Transfer of a Franchise. the City shall not
unreasonably withhold its consent, but shall first consider (i)
the legal, financial, and technical qualifications of the
transferee to operate the System; '(ii) whether the incumbent
cable operator is in Compliance with its Franchise Agreement and
this Ordinance and, if not, the proposed transferee's commitment
to cure such noncompliance; (iii) whether the transferee owns or
controls any other Cable System in the City, or whether
operation by the transferee may eliminate or reduce competition
in the delivery of Cable Service in the City; and (iv) whether
46
operation by the transferee or approval -of the Transfer would
adversely affect Subscribers the City's 'interest under this
Ordinance, the Franchise Agreement, or other applicable law, or
make it less likely that the future cable -related needs and
interests of the community would be satisfied at a reasonable
cost. The City reserves the right to review the purchase price
of any Transfer or assignment of a Cable System. To the extent
permitted by applicable law, any negotiatedsalevalue which the
City deems unreasonable will not be considered in the rate base
for any subsequent request for rate increases.
9.4 Transferee's Agreement. NO application for a
Transfer of a Franchise shall be granted unless the transferee
agrees in writing that it will abide by and accept all terms of
this Ordinance and the Franchise Agreement, and that it will
Assume the obligations, liabilities, and responsibility for all
acts and omissions, known and unknown, of the previous Grantee
under this Ordinance and the Franchise Agreement for all
purposes, including renewal, unless the City, in its sole
discretion, expressly waives this requirement in whale or in
part.
9.5 Approval Does Not Constitute Waie,91. Approval by
the City of a Transfer of a Franchise shall not constitute a
waiver or release of any of the rights of the City under this
Ordinance or a Franchise Agreement, whether arising before or
after the date of the Transfer.
9.6 Processing Pee. As a condition of considering a
Transfer, the City may impose a fee on the transferee to cover
its estimated out-of-pocket expenses in considering the
47
application for Transfer of a Franchise. Any amount collected
in excess of the estimated amount shall.be-returned to the -
transferee
10.0 FRANCHISE FEE
10.1 Fines. The City finds that the Public Rights -
of -Way of the City, county, and state to be used by a Grantee
for the operation of a Cable System are valuable public property
acquired and maintained by the county, state, and City at great
expense to the taxpayers. The City further finds that the grant
of a Franchise to use Public Rights -of -Way is a valuable
property right without which a Grantee would be required to
invest substantial capital.
10.2 Payment to City. As compensation for use of the
Public Rights -of -Way and in light of the scope of any Franchise,
in addition to providing channels, facilities and other support
for public, educational and governmental use of the Cable
System, a Grantee shall pay the City a Franchise fee. The
amount of the fee shall be specified in a Franchise Agreement.
The franchise fee shall be paid annually, provided that
provisions for more frequent payments may be specified in a
Franchise Agreement. At least once a year the Grantee shall
provide the City a report setting forth the total of Gross
Revenues for the year or other period in question and
identifying the amount of revenues attributable to each category
of Gross Revenues received by the Grantee, including non -
Subscriber Gross Revenues, and the number of Subscribers
receiving each category of Cable Service offered by the Grantee.
48
10.2.1 City Right to Request Audit. The City
shall have the. right to retain an independent auditor to W
audit the records of a Grantee to verify the computation of
amounts payable under this Ordinance or a Franchise Agreement;
and (ii) recompute any amounts determined to be payable under
this Ordinance or a Franchise Agreement, whether the records are
held by the Grantee, an Affiliate, or any other entity that
collects or receives funds related to the Grantee's operation in
the City, including, by way of illustration and not limitation,
any entity that sells advertising on the Grantee's behalf. The
Grantee shall be responsible for all reasonable costs associated
with any such audit, including the auditor's fees, as a cost
incidental to the enforcement of the Franchise, and shall have
no control over the identity or selection of the auditor. The
City shall have sole discretion in selecting the auditor and
shall not be responsible for any costs associated with the
audit_ The City shall have the right to review the auditor's
report and methodology, including the right to obtain an
explanation of all of the auditor's assumptions and
calculations, and the right to challenge and request changes to
any such assumptions and calculations. The City shall not,
however, be permitted to obtain copies of documents received by
the auditor, with the exception of documents voluntarily
provided by the Grantee to the City, or subject to copying by
the City pursuant to Section 15.1. The Grantee shall be
responsible for providing all such records to the auditor,
without regard to by whom they are held. The records shall be
maintained for at least three (3) years. Any additional amounts
49
due to the City as a result of an audit -shall be paid within
thirty (30) days following written notice to the Grantee by the
City of the underpayment, which notice shall include a copy of
the audit report_ The City may exercise its audit right no more
frequently than once per year, and only upon written notice to
the Grantee.
10.2.2 Maintenance of Records. A Grantee shall
maintain its fiscal and financial records and have all relevant
fiscal and financial records maintained by Others On its behalf
in such a manner as to enable the City to (i) determine the cost
of assets of the Grantee which are used in providing services
within the City for purposes of assessing any personal property
or other taxes and for purposes of verifying any filings that
may be made in connection with any cost of service proceedings,
and (ii) to determine Gross Revenues. For purposes of assessing
state and local taxes, the cost of assets shall be determined in
accordancewith any applicable provision of state law. For
purposes of any cost of service proceedings, and for purposes of
assessing state and local taxes if state law does not provide a
method, the cost of assets shall be determined in accordance
with FCC rules pertaining to cost of service proceedings.
11.0 CONSTRUCTION PROVISIONS
11.1 system Construction schedule. Every Franchise
Agreement shall specify the construction schedule that will
apply to any required construction, upgrade, or rebuild of the
Cable system. - -
M
11.2 construction Standards.
11.2.1 Construction Shall BeIn Accordance With
All Aonlirable Laws. The construction, operation, maintenance,
and repair of a Cable System shall be in accordance with all
applicable sections of the Occupational Safety an Health Act of
1970, as amended, the National Electrical Safety Code, the
National Electric Code, other applicable federal, state, or
local laws and regulations that may apply to the operation,
construction, maintenance, or repair of a Cable System,
including, without limitation, local zoning and construction
codes, and laws and accepted industry practices, all as
hereafter may be amended or adopted.
11.2.2 Wires To Cause Minimum Inconvenience. All
wires, cable lines, and other transmission lines, equipment, and
structures shall be installed and located to cause minimum
interference with the rights and convenience of property owners.
11.2.3 Installation of Equipment To Be of
Permanent Nature. All installation of electronic equipment
shall be of a permanent nature, using durable components.
11.2.4 Antennae. Without limiting the foregoing,
to the extent applicable, antennae and their supporting
structures (towers) shall be painted, lighted, erected, and
maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other
applicable state or local laws, codes, and regulations, all as
hereafter may be amended or adopted.
11.2.5 'Good Engineering Practices. Without
limiting the foregoing,all of a Grantee's plant and equipment,
51
including, but not limited to, the antennae site, headend and
distribution system, towers, house connections, structures,
poles, wires, cable, coaxial cable, fiber optic cable, fixtures,
and apparatuses shall be installed, located, erected,
constructed, reconstructed, replaced, removed, repaired,
maintained, and operated in accordance with good engineering
practices, performed by experienced and properly trained
maintenance and construction personnel so as not to endanger or
interfere with improvements the City shall deem appropriate to
make or to interfere in any manner with the Public Rights -of -
Way or legal rights of any property owner or to unnecessarily
hinder or obstruct pedestrian or vehicular traffic.
11.2.6 Safety Practices. All safety practices
required by law shall be used during construction, maintenance,
and repair of a Cable System. A Grantee shall at all times
employ reasonable care and shall install and maintain in use
commonly accepted methods and devices preventing failures and
accidents that are likely to cause damage, injury, or nuisance
to the public.
11.2.7 No Interference With Other Utilities. A
Grantee shall not place facilities, equipment, or fixtures where
they will interfere with any gas, electric, telephone, water,
sewer, or other utility facilities, or obstruct or hinder in any
manner the various utilities serving the residents of the City
of their use of any Public Rights -of -Way.
11.2.8 Repair of Rights -of -Way. Any and all
Public Rights -of -Way, public property, or private property that
is disturbed or damaged during the construction, repair,
52
replacement, relocation, operation, maintenance, or construction
of a System or otherwise, including installation," repair,
maintenance or replacement of a Grantee's equipment shall be
promptly repaired by the Grantee.
11.2.9 Removal Of System Due To Conditions 1
Rights -of -Way. A Grantee shall, by a time specified by the
City, protect, support, temporarily disconnect, relocate, or
remove any of its property when required by the City by reason
of traffic conditions; public safety; Public Right -of -Way
construction; Public Right -of -Way maintenance or repair
(including resurfacing or widening); change of Public Right -of -
Way grade; construction, installation or repair of sewers,
drains, water pipes, power lines, signal lines, tracks, or any
other type of government-owned communications system, public
work or improvement or any government -Owned utility; Public
Right -of -Way vacation; or for any other purpose where the
convenience of the City would be served thereby; provided,
however, that the Grantee shall, in all such cases, have the
privilegeofabandoning any Property in place.
11.2.10 Removal by City Due To Emergency. in the
event of an emergency, or where a Cable system creates or is
contributing to an imminent danger to health, safety, or
property, the City may remove, relay, or relocate that portion
of the Cable system. Unless the nature of the emergency or
danger is such that immediate action is necessary to preserve
life or property or to Prevent physical harm to any individual,
the City shall provide telephonic notice to the Grantee prior to
53
removing, relaying or relocating any portion of a Grantee's
Cable System. - -
11.2.11 Raisin or Lowering Wires To Permit
Moving of Buildings. A Grantee shall, on the request of any
Person holding abuilding moving permit issued by the City,
temporarily raise or lower its wires to permit the moving of
buildings. The expense of such temporary removal or raising or
lowering of wires shall be paid by the Person requesting same,
and the Grantee shall have the authority to require such payment
In advance, except in the case where the requesting person 1s
the City, in which case no such payment shall be required. The
Grantee shall be given reasonable advance notice to arrange for
such temporary wire changes, as provided in 35-A M.R.S.A.
5 2516.
11.2.12 Authority To Trim Trees. A Grantee shall
have the authority to trim trees that overhang a Public Right -
of -Way of the City so as to prevent the branches of such trees
from coming in contact with the wires, cables and equipment of
the Grantee. Except In emergencies, a Grantee shall notify the
City at least one business day prior to performing any such
trimming. At the option of the City, such trimming may be done
by the City or under the City's supervision and direction, at
the expense of the Grantee.
11.2.13 Use of Existing Utility '1' i A
Grantee shall use, with the owner's permission, existing under-
ground conduits of overhead utility facilities Whenever feasible -
and may not erect poles or support equipment in Public Rights -
of -Way without the express permission of the City. Copies of
54
agreements for use of conduits or other facilities shall be
filed with the City as required by a Franchise Agreement or upon
the City's written request.
11.2.14 Undergroundinp of Cable. (a) In Public
Rights -of -Way or other places where electrical and telephone
utility wiring is located underground, either at the time of
initial construction of a Cable System or at any time
thereafter, a Grantee's Cable System also shall be located
underground. (b) Between a Public Right -of -Way and a
Subscriber's residence, if either electric or telephone utility
wiring is aerial, a Grantee may install aerial cable except
where a property owner or resident requests underground
installation and agrees to bear the additional cost of such
installation over and above the cost of aerial installation.
Where existing subdivision approvals, deed covenants, municipal
zoning or other legal restrictions require underground location
of utilities, Grantee's cable shall be located underground, and
the Subscriber shall bear the additional cost of such
installation on their property as a condition of receiving cable
service.
11.2.15 City Use of Grantee's Poles. The Qity
shall have the right to install and maintain free of charge upon
the poles owned by a Grantee any wire and pole fixtures that do
not materially interfere with the Cable System operations of the
Grantee.
11.2.16 City Approval of Construction. Prior to
erection of any towers, poles, or conduits or the construction,
upgrade, or rebuild of a Cable system authorized under this
55
Ordinance or a Franchise Agreement, a Grantee shall first submit
to the City and other designated parties for approval a concise
description of the Cable System proposed to be erected or
installed, including engineering drawings, if required, together
with a map and plans indicating the proposed location of all
such facilities. No erection or installation of any tower,
pole, underground conduit, or fixture or any rebuilding or
upgrading of a Cable System shall be commenced by any Person
until the Grantee has obtained all building permits, street
operating permits or other approvals required by the City under
any ordinance, regulation or procedure generally applicable to
such activities.
11.2.19 Contractors and Subcontractors. Any
contractor or subcontractor used for work or construction,
installation, operation, maintenance, or repair of System
equipment must be properly licensed under laws of the State and
all applicable local ordinances. The Grantee must ensure that
contractors, subcontractors and all employees who will perform
work for it are trained and experienced. Each Contractor and
subcontractor must perform work in Compliance with all
applicable provision of law and a Franchise Agreement, and the
Grantee shall implement a quality Control program to ensure that
the work is so performed.
11.3 Publicizing Proposed Construction Work. Except In
emergencies or to restore outages, Grantee shall publicize
proposed construction work prior to commencement of that work by
causing written notice of such construction work to be delivered
to the City and by notifying those Persons most likely to be
56
affected by the work inatleast two (2� of the following ways:
by telephone, in person, by flail, by distribution of flyers to
residences, by publication in local newspapers, or in any other
manner reasonably calculated to provide adequate notice,
including use of local informational channels. whenever
practicable, such notice shall be given at least one (1) week
prior to commencement of the work concerned.
11.4 Continuity of Service.
11.4.1 Subscriber Right. It is the right of all
Subscribers in a Grantee's Franchise Area to receive all
services that a Grantee is then providing under the terms of a
valid Franchise as long as their financial and other obligations
to the Grantee are satisfied; provided, however, that to the
extent a Grantee's agreements with its programming providers
prohibit the Grantee from providing certain Cable Services to
nonresidential subscribers, the Grantee may exclude such
services from its offerings to nonresidential Subscribers.
11.4.2 Assurance of Continuous Uninterrupted
Service. A Grantee shall ensure that all Subscribers receive
continuous uninterrupted service. To this end, Grantee shall:
(a) In the event of a Sale or Transfer of its Franchise,
cooperate with the City to assure an orderly transition from it
to another Grantee and take all steps necessary to maintain
service to Subscribers until the Sale or Transfer has been
completed; (b) not abandon service to the entire City without
having given 12 months' Prior notice to the city; and (C) not
abandon service to any portion of the City (excepting
termination of service to individual subscribers as otherwise
57
permitted) without having given 6 months' prior written notice
to the City. Following such notice, the Grantee shall continue
to be obligated to comply with the terms and conditions of its
Franchise Agreement and applicable laws and regulations and
shall cooperate with the City to assure an orderly transition
from it to another Grantee.
11.4.3 AbandQfjegnt of System. If a Grantee
abandons its System during the Franchise term, or fails to
operate its System in accordance with this Article 11.0 during
any Transition Period, the City, at its option, may Operate the
System, designate another entity to operate the System
temporarily until the Grantee restores service under conditions
acceptable to the City or until the Franchise is revoked and a
new Grantee selected by the City is providing service, or obtain
an injunction requiring the Grantee to continue operations. If
the City is required to operate or designate another entity to
operate the Cable System, the Grantee shall reimburse the City
or its designee for all reasonable costs and damages incurred
that are in excess of the revenues from the Cable System. In
addition, any abandonment of a System shall be subject to all of
the provisions of 30-A M.R.S.A. § 3008(3)(B).
11.4.4 Injunctive Relief. The City shall be
entitled to injunctive relief under the preceding paragraph if:
a. The Grantee fails to provide Cable Service
in accordance with its Franchise over a substantial portion Of
the Franchise Area for ninety-six (96) consecutive hours, unless
the City authorizes a.longer-interruption of service or as
permitted pursuant to the force majeure clause of § 17.2; or
58
b. The Grantee, for any period, willfully and
without cause refuses to provide Cable Service in accordance
with its Franchise over a substantial portion of the Franchise
Area.
12.0 SYSTEM FACILITIES EQUIPMENT AND SERVICES
In addition to satisfying such requirements as may be
established through the application process, every Cable System
shall be subject to the following conditions, except as
prohibited by federal law:
12.1 Provision of Service. Each Franchise Agreement
shall contain a line extension policy that shall govern a
Grantee's obligation to extend service. Unless otherwise
specified in a Franchise Agreement, after Cable Service has been
established by activating trunk distribution cable for an area
specified in a Franchise Agreement, a Grantee shall provide
Cable Service to any household requesting Cable Service within,
that area, including each multiple dwelling unit in that area,
except for multiple dwelling units to which it cannot legally
obtain access. In providing services to multiple dwelling
units, a Grantee shall comply with all applicable provisions of
14 M.R.S.A. S 6041.
12.2 Full Video Service to Municipal Buildings,
Facilities and Equipment. A Franchise Agreement may require a
Grantee to install, at no charge, at least one service outlet at
all municipal buildings within the Franchise Area that can be
reached by a standard drop, and may provide that the Grantee
59
shall charge only its time and material costsfor any additional
service outlets to such facilities. A Franchise Agreement may
also require a Grantee to provide Basic Cable Service and the
lowest tier of Cable Programming Services to such buildings free
of charge. Finally, a Franchise Agreement may provide that such
service outlets shall be capable of providing the full range of
non -cable electronic' data and telecommunication services
provided by a Grantee, and may require other facilities and
equipment and channel capacity in accordance with the Cable Act,
at rates and terms set out in the Franchise Agreement.
12.3 Technical Standards.
12.3.1 FCC standards. Any Cable System within
the City shall meet or exceed the technical standards set forth
in 4] C.F.R. § 76.601 and any other applicable technical
standards, including any such standards as hereafter may be
amended or adopted by the City in a manner consistent with
federal law.
12.3.2 Facilities Shall Not Interfere With
Others' Signals or Facilities. A Grantee shall not design,
install, or operate its facilities in a manner that will
interfere with the signals of any broadcast station,the
facilities of any public utility, the Cable System of another
'Grantee, or individual or master antennae used for receiving
television or other broadcast signals.
12.4 Proof of Performance Tests. At the times
specified in a Franchise Agreement or as required by FCC rules,
a Grantee shall perform Proof of performance tests, and such
other tests as may be specified in a Franchise Agreement,
60
designed to demonstrate compliance with this Article, the
Franchise Agreement, and FCC requirements:. The Grantee shall
provide the results of proof of performance tests promptly to
the City, upon the City's written request. The City shall have
the right to inspect the Cable System during and after its
construction to ensure compliance with this Article, the
applicable Franchise Agreement, and applicable provisions o,
local, state and federal law, and may require the Grantee to
perform additional tests based on the City's investigation of
Cable System performance or on Subscriber complaints.
13.0
13.1 Telephone and Office Availability.
13.1.1 Office' Hours of Operation' Telephone.
Each Grantee shall maintain an office at a location reasonably
convenient to Subscribers that shall be open at least 50 hours
each week, including, during the hours of 8:30 a.m. to 5 p.m.
Monday through Friday and 8:30 a.m, to 12 p.m. Saturday
exclusive of all State and Federal holidays, to allow
Subscribers to request service and conduct other business. Each
Grantee shall ensure that its office shall meet all applicable
access requirements of the Maine Human Rights Act and the
Americans with Disabilities Act, and all other applicable
federal and state laws and regulations. Each Grantee shall
perform service calls, installations, and disconnects during at
least the hours for which its office is open for business,
provided that a Grantee shall respond to outages twenty-four
(24) hours a day, seven (7) days a week. Each Grantee shall
61
establish a publicly listed toll-free telephone number, and
shall either ensure that its telephone service has TTY and TDD
capabilities, or contract with a third party to provide Grantee
with such services. The phone must be answered by customer
service representatives at least during the hours for which the
Grantee's office is open for business, for the purpose of
receiving requests for service, inquiries, and complaints from
Subscribers; after those hours a Grantee shall arrange for the
phone to be answered so that customers can register complaints
and report service problems on a twenty-four (24) hour per day,
seven (7) day per week basis, and so that the Grantee can
respond to service outages as required herein.
13.1.2 Telephone Answering Time. Telephone
answering time shall not exceed thirty (30) seconds or four (4)
rings, and the time to transfer the call to a customer service
representative (including hold time) shall not exceed an
additional thirty (30) seconds. This standard shall be met
ninety (90) percent of the time, measured quarterly. When the
business office is closed, an answering machine or service
capable of receiving and recording service complaints and
inquiries shall be employed. Any after-hours answering service
used shall comply with the same telephone answer time standard
set forth 1n this Article 13.1. If required by its Franchise
Agreement, a Grantee shall supply statistical data to verify it
has met the standards set forth herein.
13.1.3 Staff. A Grantee must hire sufficient
staff so that it can adequately respond to customer inquiries,
complaints, and requests for service in its office, over the
62
phone, and at the Subscriber's residence.
13.2 Scheduling Work.
13.2.1 Appointments. All appointments for
service, installation, or disconnection shall be specified by
date. Each Grantee shall offer a choice of morning, afternoon,
or all -day appointment opportunities. If at any time an
installer or technician believes it impossible to make a
scheduled appointment time, an attempt to contact the customer
will be made prior to the time of appointment and the
appointment rescheduled.
13.2.2 Missed Appointments. Subscribers who
experience a missed installation appointment due to the fault of
a Grantee shall receive standard installation free of charge.
It the installation was to have been provided free of charge, or
for other appointments, the Subscriber shall receive one (1)
month of the subscribed to Service Tier free of charge, or a
credit of $20.00, whichever is greater.
13.2.3 Mobility -Limited Customers. With regard
to mobility -limited customers, upon Subscriber request, each
Grantee shall arrange for pickup and/or replacement of
converters or other Grantee equipment at the Subscriber's
address or by a satisfactory equivalent (such as the provision
of a postage -prepaid mailer).
13.2.4 Acknowledgement of and Response to
Customer Requests. Requests for service, repair, and
maintenance must be acknowledged by a Grantee within twenty-four
(24) hours, or prior to the end of the next business day. A
Grantee shall respond to all other inquiries (except billing
63
inquiries) within five (5) businessday'sof the inquiry or
complaint. A Grantee shall acknowledge.receipt of billing
inquiries within five (5) days and provide a detailed response
within thirty (30) days.
13.2.5 Completion of work. Repairs and
maintenance for service interruptions and other repairs not
requiring in -unit work must be initiated within twenty-four (24)
hours and must be completed within sixty-two (62) hours. All
other requests for service must be completed within three (3)
days from the date of the initial request, except installation
requests, provided that a Grantee shall complete the work in the
shortest time possible where, for reasons beyond the Grantee's
control, the work could not be completed in those time periods
even with the exercise of all due diligence; the failure of a
Grantee to hire sufficient staff or to properly train its staff
shall not justify a Grantee'sfailure to comply with this
provision. Except as federal law requires, no charge shall be
made to the Subscriber for this service, except for the cost of
repairs to the Grantee's equipment or facilities where it can be
documented that, the equipment or facility was damaged by a
Subscriber.
13.2.6 Work Standards. The standards of Articles
13.2.4 and 13.2.5 shall be met ninety-five (95) percent of the
time, measured on a quarterly basis.
13.3 Notice to Subscribers.
13.3.1 Provision of Information to Subscribers. A
Grantee shall provide.each Subscriber at the time Cable Service
is installed, and at least annually thereafter, written
64
instructions for placing a service call, filing a complaint, or
requesting an adjustment. Each Granteeshall also provide a
notice informing subscribers of how to communicate their views
and complaints to the cable company, the proper municipal
official and the State Attorney General; stating the responsi-
bility of the State Attorney General to receive consumer
complaints concerning matters other than channel selection and
rates; and stating the Policy regarding and method by which
subscribers may request rebates or pro-rata credits as provided
in this Ordinance or applicable federal or state law or
regulation. In addition, all Grantees shall provide Subscribers
to their services a schedule of rates and charges, a copy of the
service Contract. delinquent Subscriber disconnect and reconnect
procedures, and a description of any other of the Grantee's
policies in connection with its Subscribers. Copies of these
notices shall be provided to the City. A Grantee shall provide'
the City and each Subscriber at least thirty (30) days advance "
notice of any significant changes in any of the information
required by this section.
13.3.2 Disclosure of Price Terms. All Grantee
promotional materials, announcements, and advertising of
residential Cable Services to Subscribers and the general
public, where price information is listed in any manner, shall
clearly and accurately disclose price terms. In the case of
pay-Per-view or pay-per-event programming, all promotional
materials must clearly and accurately disclose price terms and
in the case of telephone orders, a Grantee shall take a ro ri-
p PB P
ate steps to ensure that the customer service representatives
65
clearly and accurately disclose price terms to potential
customers in advance of taking the order. '
13.3.3 Public File. Each Grantee shall maintain
a public file containing all notices provided to Subscribers
under these customer service standards, as well as all written
promotional offers made to Subscribers by the Grantee. Material
in the file shall be retained for at least one year after the
later of the date of mailing or public announcement of the
information contained in a notice.
13.4 Interruptions of Service. A Grantee may
intentionally interrupt service on the Cable System only for
good cause and for the shortest time possible and, except in
emergency situations, only after a minimum of forty-eight (48)
hours priornotice to Subscribers and the City of the antici-
pated service interruption; provided, however, that planned
maintenance that does not require more than two (2) hours'
interruption of service and that occurs between the hours of
12:00 a.m. and 6:00 a.m. shall not require such notice to
Subscribers, and notice to the City may be given no less than
twenty-four (24) hours prior to the anticipated service
interruption. -
13.5 Biles.
13.5.1 Proration of First Billing statement. A
Grantee's first billing statement after a new installation or
service change shall be prorated as appropriate and shall
reflect any security deposit, made or given by the Subscriber to
the Grantee.
66
13.5.2 Itemization. A Grantee's billing
statement must itemize each category o& service and equipment
provided to the Subscriber and state clearly the charge
therefor.
13.5.3 Payment Due Date. A Grantee's billing
statement must show a specific payment due date not earlier than
ten (10) days after the date the statement is mailed. Any
balance not received within thirty (30) days after the due date
may be assessed a late fee not exceeding one and one-half
percent (1.5%) of the amount due or any higher amount allowed by
State law. The late fee shall appear on the following month's
billing statement.
13.5.4 In Person Pavments. A Grantee must notify
the Subscriber that he or she can remit payment in person at the
Grantee's office in the greater Bangor area and inform the
Subscriber of the address of that office.
13.5.5 No Late Pees for Failures by Grantee.
Subscribers shall not be charged a late fee or otherwise
penalized for any failure by a Grantee, including a failure to
timely or correctly bill the. Subscriber, or failure to properly
credit the Subscriber for a payment timely made.
13.5.6 Credit for Lack or Impairment of Service.
Upon request, the account of any Subscriber shall be credited a
prorated share of the monthly charge for the service if said
Subscriber is without service or if service is substantially
impaired for any reason for a period exceeding six (6) hours
during any twenty-four (24) hour period, except where it can be
documented that a Subscriber seeks a refund for an outage or
67
or impairment which that Subscriber caused, or in the case of a
planned outage occurring between the hours of 12:00 midnight and
6:00 a.m, of which the Subscriber had prior notice.
13.6 Disconnection/Downgrades.
13.6.1 Subscriber Termination. A Subscriber may
terminate service at any time.
13.6.2 Prompt Disconnection or Downgrade on
Reauest, Charges. A Grantee shall promptly disconnect or down-
grade any Subscriber who so requests from the Grantee's Cable
System, unless the Subscriber unreasonably hinders access by the
Grantee to equipment of the Grantee or the Subscriber's premises
to which the Grantee must have access to complete the requested
disconnection. No period of notice prior to voluntary termi-
nation or downgrade of service may be required of Subscribers by
any Grantee. No charge may be imposed for any,voluntary
disconnection, and downgrade charges must comply with the
requirements of federal law. So long as the Subscriber returns
equipment necessary to receive a service within five (5)
business days of the disconnection, no Charge may be imposed by
any Grantee for any Cable Services delivered after the date of
the request to disconnect.
13.6.3 Subscriber Return of Eanipment. A
Subscriber may be asked, but not required, to disconnect a
Grantee's equipment and return it to the business office;
provided that if a Subscriber requests that a Grantee pick up
the equipment, the Subscriber shall provide reasonable access to
the Subscriber's premises during Grantee's business hours to
allow the Grantee to retrieve the equipment.
(y
13.6.0 Refund of Securitv Deposit Any security
deposit and/or other funds due the Subscriber shall be refunded
on disconnected accounts after the converter has been recovered
by the Grantee. The refund process shall take a maximum of
thirty (30) days or the next billing cycle from the date
disconnection was completed as required herein to the date the
customer receives the refund.
13.6.5 Disconnection for Failure To Pay Pee. if
a Subscriber fails to pay a monthly Subscriber or other fee or
charge, a Grantee may disconnect the Subscriber's service
outlet however, such disconnection shall not be effected until
at least forty-five (95) days after the due date of the monthly
Subscriber fee or other charge and, after ten (10) days' advance
written notice of intent to disconnect is given to the
Subscriber in question. If the Subscriber pays all amounts due,
including late charges before the date scheduled for
disconnection, the Grantee shall not disconnect service.
Subject to Section 13.6.2, after disconnection, upon payment by
the Subscriber in full of all proper fees or charges, including
the payment of the reconnection charge, if any, Grantee shall
promptly reinstate service.
13.6.6 Risoonnection for Damage to Svstem or
Equipment. A Grantee may immediately disconnect a Subscriber if
the Subscriber is damaging or destroying the Grantee's Cable
System or equipment. After disconnection, the Grantee shall
restore service after the Subscriber provides adequate assurance
that it has ceased the practices that led to disconnection, and
paid all proper fees and charges, including reconnect fees, a
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reasonable security deposit, and amounts owed the Grantee for
damage to its Cable System or equlpmenY:. --- 1
13.6.7 Disconnection for Signal Leakage. A
Grantee may also disconnect a Subscriber that in any way,
intentionally or otherwise, causes signal leakage in excess of
federal limits. It may do so in accordance with Federal rules
and requirements or, if the Subscriber fails to take steps to
correct the problem. It may also do so without notice in the
event of a danger to the public safety, provided that the
Grantee shall immediately notify the Subscriber of the problem
and, once the problem is corrected, reconnect the Subscriber
without charge.
13.6.8 Removal of Grantee Property. Except as
federal law may otherwise provide, if a Subscriber terminates
service, a Grantee may offer the Subscriber the opportunity to
acquire any wiring located on the premises that is the Property
of Grantee at replacement cost. If the Subscriber declines to
purchase the wiring, the Grantee must remove its property from
the Subscriber's premises within seven (7) days, if requested by
the Subscriber. If a Grantee fails to remove the wiring in that
period, the Grantee shall make no further attempt to remove the
wiring or restrict its use.
13.7 Chances in Service. In addition to rights
reserved by the City, Subscribers shall have rights with respect
to alterations in service. The Grantee may not alter the
service being provided to a class of Subscribers (including by
retlering, restructuring or Otherwise) without the express
permission of each Subscriber, unless it complies with this
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Article. At the time the Grantee alters the service it provides
to a class of Subscribers, it must provide.each Subscriber -
thirty (30) days' notice, explain the substance and full effect
of the alteration, and provide the Subscriber the right within
the thirty (30) day period following notice to opt to receive
any combination of services Offered by Grantee. Except as
federal law otherwise provides, Subscribers may not be required
to pay any charge (other than properly noticed rates), including
an upgrade or downgrade charge, in order to receive the services
selected. No charge may be made for any service or product for
which there is a separate charge that a Subscriber has not
affirmatively indicated it wishes to receive. Payment of the
regular monthly bill does not in and of itself constitute such
an affirmative indication.
13.8 Deposits. A Grantee may require a reasonable,,
non-discriminatory deposit on equipment provided to _
Subscribers. Deposits shall be placed in an interest-bearing -
account, and the Grantee shall return the deposit, plus interest
earned to the date repayment is made to the Subscriber.
Interest will be calculated at the prevailing commercial savings
rate on all late payments.
13.9 Recording Subscriber Complaints. A Grantee shall
maintain a record of subscribed complaints in accordance with
30-A M.A.S.A. 5 3010(4):
a. Every franchisee shall keep a record or log
of all written complaints received regarding quality of service,
equipment malfunctions, billing procedure, employee attitude and
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similar matters. These records shall be maintained for a period
of 2 years.
b. The record shall contain thefollowing
information for each complaint received:
(1) Date, time and nature of the complaint
(2) Name, address and telephone number of the
person complaining;
(3( Investigation of the complaint;
(4) Manner and time of resolution of the
complaint;
(5) If the complaint regards equipment
malfunction or the quality of reception, a report indicating
corrective steps taken, with the nature of the problem stated;
and
(6) Consistent with subscriber privacy
provisions contained in the Cable Act and applicable FCC
regulations, every Grantee shall make the logs or records of
complaints available to any authorized agent of any franchising
authority having a franchise with that Grantee or any authorized
agent of a municipality considering a franchise with that
Grantee upon request during normal business hours for on-site
review.
13.10 Remedies for Violators. In addition to the
remedies set forth elsewhere in this Ordinance and in the
Franchise Agreement, subscribers shall have available the
remedies provided by 30-A M.R.S.A. 4 3010(7).
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14.0 RATE REGULATION
14.1 City Mav Regulate Rates. The City may regulate
all rates and Charges except to the extent it is prohibited from
doing so by law, and if the City does exercise its rate
regulatory authority, no rate or charge may be .imposed or
increased without the prior approval of the City except such
rates and Charges that the City is prohibited from regulating.
Subject to the foregoing, any change made without prior approval
is an illegal change, and a Grantee is prohibited from
requesting or requiring a Subscriber to pay an illegal rate as a
condition of providing service. This section shall not be
Construed to mean that any Grantee has consented or will consent
to subject itself to rate regulation.
14.2 Authority to Adopt Regulations. All rates that
are subject to regulation by the City must be reasonable. The
City may adopt such regulations, procedures, and standards as it
deems necessary to implement rate regulation and may regulate
rates by amendment to this Ordinance, by a separate resolution
Or ordinance, by amendment to a Franchise Agreement, or in any
other lawful manner. This section shall not be construed to
mean that any Grantee has Consented or will consent to subject
itself to rate regulation.
14.3 Rate Change.
14.3.1 Advance Notice of Rate Changes. At least
thirty (30) days prior to implementing any increases in rates,
or changes in channel positions, programming, or service terms
or conditions, a Grantee shall provide the City and each
Subscriber with written notice describing any such changes it
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plans to make and the proposed effective dates for the changes.
A Grantee shall not be required.to provide. 30 days' notice of
rate decreases or temporary promotional offers that result in
lower rates for Subscribers, provided that it has given the City
notice of. such decreases and offers prior to implementation.
14.3.2 Explanation of Rate Changes. In addition
to the required notice, before it alters services or service
terms or conditions, a Grantee must provide a reasonably simple
and clear written notice explaining the substance and full
effect of the alteration, including the effect on rates and
service options and the effect of the change on the use of other
consumer electronic equipment_ Such written notice shall be
provided to the City at least thirty (30) days, and to
Subscribers at least thirty (30) days, before the change.
14.3.3 Changes Made Without Required Not1Cg
Invalid. Any change made without the required 30 days' notice
shall be of no force or effect, and a Grantee shall be obligated
to refund any increased amount Collected without the required 30
days' notice, and to restore service to the prior existing
status, at least until the required notice is provided. This
subsection shall not limit the right of a Grantee to implement
any rate decreases or temporary promotional offers that result
in Sower rates for Subscribers immediately upon providing
written notice of these rate changes to the City. This
subsection shall not be interpreted to limit the City's right to
exercise its rate regulation authority under Article 14.1 of
this Ordinance, the availability ofremedies under applicable
74
laws or regulations, or rights under the customer service
standards set forth in Article 13.0 of this Ordinance.
15.0 RECORDS AND REPORTS
15.1 Open Books and Records. The City shall have the
right to inspect and copy at any time after reasonable notice
during normal business hours at a Grantee's local office, all
materials and records of the Grantee relevant to the City's
management of the Public Rights -of -Way and regulation of
customer service and consumer affairs including all maps, plans,
service complaint logs, performance test results, records of
requests for service, computer records, codes, programs, and
discs or other storage media and other like material which the
City reasonably deems appropriate in Order to monitor compliance
with the terms of this Ordinance, a Franchise Agreement, or
applicable law. A Grantee shall make available to the City, to
the best of its ability, the same types of materials which the
City deems relevant and which are held by an Affiliate, a cable
operator of the Cable System, and any contractor, subcontractor
or any person holding any form of management contract for the
Cable System. The Grantee is responsible for collecting, to the
best of its ability, such requested information and producing it
at its offices in the greater Bangor area, and as part of its
application it must affirm that it can and will d0 s0. The City
shall preserve the confidentiality on proprietary business
information of a Grantee or another party provided to the City
by the 'Grantee, to the extent permissible under Maine law. To
that end, the Grantee shall clearly identify any proprietary
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business information that it believes to be entitled to
confidential treatment, so that the City may establish
appropriate safeguards against improper disclosure. The City
shall also have the right to inspect at any time after
reasonable notice during normal business hours at a Grantee's
local office all materials relevant to the financial condition
of the Grantee, including all books, records, receipts,
contracts, financial statements, computer records, codes,
programs, and discs or other storage media and other like
material which the City reasonably deems appropriate in order to
monitor compliance with the terms of this Ordinance, a Franchise
Agreement, or applicable law. A Grantee shall make available
for inspection by the City, to the best of its ability, the same
types of materials that the City deems relevant and that are
held by an Affiliate, a cable operator of the Cable System, and
any contractor, subcontractor or any person holding any farm of
management contract for the Cable System. The Grantee is
responsible for collecting, to the best of its ability, such
requested information and producing it at its offices in the
greater Bangor area, and as part of its application it must
affirm that it can and will do so. The City shall preserve the
confidentiality of proprietary business information of a Grantee
provided for inspection by the City by the Grantee, to the
extent permissible under Maine law. To that end, the Grantee
shall clearly identify any proprietary business information that
it believes to be entitled to confidential treatment, so that
the City may establish appropriate safeguards against improper
disclosure. _
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15.2 Required Reports. A Grantee shall file the
following with the City In a form acceptable to the City:
15.2.1 Annual Construction Report. An annual
report setting forth the physical miles of plant construction
and plant in operation during the fiscal year shall be submitted
to the City. Such report also shall contain any revisions to
the System "as. built" maps filed with the City. The annual
report shall be provided at the time specified in the Franchise
Agreement.
15.2.2 Notices Instituting Civil or Criminal
Proceedings. A Grantee shall provide the City with copies of
any notice of deficiency, forfeiture, or other document issued
by any state or federal agency instituting anyinvestigation or Y.
civil or criminal proceeding regarding the Cable System, the ti
Grantee, or any Affiliate of the Grantee, to the extent the same
may affect or bear on operations in the City. A notice that an
Affiliate that has a management contract for the Cable System
was not in compliance with FCC EEO requirements within the work
unit serving the City would be deemed to affect or bear on
operations in the City. This material shall be submitted to the
City at the time it is filed or within five (5) days of the date
it is received.
15.2.3 Bankruptcy Declarations. Any request for
protection under bankruptcy laws, or any judgment related to a
declaration of bankruptcy by the Grantee or by any partnership
or corporation that owns or controls the Grantee directly or
indirectly. This material shall be submitted to the City at the
time it is filed or within five (5) days of the date it is
received. -
]]
15.3 Reports To Be Provided On Request. --
15.3.1 Reports Required by -FCC, Upon the City's
written request, a Grantee shall deliver to the City copies of
all reports required by the FCC, including, but not limited to,
any proof of performance tests and results, Equal Employment
Opportunity reports, and all petitions, pleadings, notices, and
applications regarding the Cable System, or a group of Cable
Systems of which the Grantee's Cable System is a part, submitted
or received by the Grantee, an Affiliate, or any other Person on
the behalf of the Grantee, either to or from the FCC, or any
other federal or state regulatory commission or agency having
jurisdiction over any matter affecting operation of the
Grantee's System, for the time period specified in the City's
request.
15.3.2 Financial Reports. The City may request
the following financial reports for the Franchise Area, once per
Calendar year:
a. An ownership report, indicating all Persons
who at any time during the preceding year did control or benefit
from an interest in the Franchise of five (5) percent or more.
b. An annual income statement showing
Subscriber revenue from each category of service and every
source of non -Subscriber revenue.
c. A current annual statement of all capital
expenditures, including the cost of construction and of
equipment, used or placed within the City.
d. An annual list of officers and members of
the Hoard of Directors of the Grantee and any Affiliates.
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e. An organizational chart showing what
corporations or partnerships with more than a five (5) percent
interest own the Grantee, and the nature of that ownership
interest (limited partner, general partner, preferred share-
holder, etc.); and showing the same information for each
corporation or partnership so identified and so on until the
ultimate corporate and partnership interests are identified.
f. An annual report of each entity identified
in Article 15.3.2.e which issues an annual report.
15.3.3 System d Operational Reports. The
following System and operational reports shall be submitted
annually upon request of the City:
a. An annual summary of the previous year's
activities including, but not limited to, Subscriber totals for
each category of service offered, including number of pay units
sold, new services offered, and the amount collected annually
from other Users of the System and the character and extent of
the service rendered thereto.
b. An annual projection of System and service
plans for the future.
15.4 Additional Reports. The Grantee shallprepare and
furnish to the City, at a time reasonably prescribed by the
City, such additional reports with respect t0 its operation,
affairs, transactions, or property as the City may reasonably
deem necessary and appropriate to the performance of any of the
rights, functions, or duties Of the City in connection with this
Ordinance or the Franchise Agreement.
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15.5 Records Required.
15.5.1 Records To Be Maintained.- A Grantee shall
at all times maintain and shall deliver to the City upon
request, the following records:
a. Records of all complaints maintained
pursuant to Section 13.9.
b. A full and complete set of plans, records,
and "as built" maps showing the exact location of all System
equipment installed or in use in the City, exclusive of
Subscriber service drops.
c. Records of outages, indicating date,
duration, area, and the estimated number of Subscribers
affected, type of outage, and cause.
d. Records of service calls for repair and
maintenance indicating the date and time service was required,
the date of acknowledgement and date and time service was
scheduled (if it was scheduled), and the date and time service
was provided, and (if different) the date and time the problem
was solved.
e. Records of installation/reconnection and
requests for service extension, indicating date of request, date
of acknowledgement, and the date and time service was extended.
15.5.2 Additional Information. The City may
request and a Grantee shall promptly provide additional
information, reports, records, and documents as may be
reasonably required from time to time for the performance by the
City of any of its rights, functions, or duties in conversations
with this ordinance or s Franchise Agreement.
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15.6 Performance Evaluation.
15.6.1 City Discretion To Hold Public Sessions.
The City may, at its discretion, hold scheduled performance
evaluation sessions. All such evaluation sessions shall be open
to the public.
15.6.2 Announcement of Sessions. All evaluation
sessions shall be open to the public and announced in a
newspaper of general circulation.
15.6.3 Discussion Topics. Topics that may be
discussed at any scheduled or special evaluation session may
include, but are not limited to, system performance and
construction, Grantee compliance with this Ordinance and a
Franchise Agreement, customer service and complaint response,
Subscriber privacy, services provided, programming offered,
service rate structures, if applicable, Franchise fees,
penalties, free or discounted services, applications of new
technologies, judicial and FCC filings, and line extensions.
15.6.4 Grantee Cooperation. During the review
and evaluation by the City, a Grantee shall fully cooperate with
the City and shall provide such information and documents as the
City may need to reasonably perform its review.
15.7 Voluminous Materials. If the books, records, maps
or plans, or other requested documents are too voluminous, or
for security reasons cannot be Copied and moved, then a Grantee
may request that the inspection take place at some other
location, provided that (i) the Grantee must make necessary
arrangements for copying doeuments selected by the City after
review; and (ii) the Grantee must pay reasonable travel and
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additional copying expenses incurred by the City in inspecting
those documents or having those documents. inspected by its
designee, if done outside the greater Bangor area.
15.8 Retention of Records, Relation to Privacy Rights.
Each Grantee shall take all steps required, if any, to ensure
that it is able to provide the City all information which must
be provided or may be requested under this Ordinance or a
Franchise Agreement, including by providing appropriating
Subscriber privacy notice. Nothing in this Article shall be
read to require a Grantee to violate 97 U.S.C. 4 551. Each
Grantee shall be responsible for blacking out any data that
federal or state law prevents it from providing to the City.
16.0 RIGHTS OFINDIVIDUALS PROTECTED
16.1 Discriminatory Practices Prohibited.
16.1.1 Discrimination Prohibited. A Grantee
Shall not deny service, deny access, or otherwise discriminate
against Subscribers, programmers, or residents of the City on
the basis of race, color, religion, national origin, sex, age,
physical handicap, or on any other basis prohibited by federal
or state law. This provision is not intended to require a
Grantee to provide any equipment or service free of charge to
any Subscriber, unless such equipment or service is provided
free in a manner that discriminates among Subscribers in a
manner that is prohibited by state or federal law, or unless the
provision of free equipment or service is required by state or
t
federal law.
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16.1.2 Discrimination for Exercise of Right
Prohibited. A Grantee shall not discriminate among Persons or
take any retaliatory action against a Person because of that
Person's exercise of any right it may, have under federal, state,
or local law, nor may the Grantee require a Person to waive such
rights as a.condition of taking service.
16.1.3 Differential Rates Eased on Subscriber
Income Prohibited. A Grantee shall not deny access or levy
different rates and charges on the residents of any particular
geographical area because of the income of the residents of that
geographical area.
16.1.4 Rate Preferences Prohibited. Except to
the extent the City may not enforce such a requirement, a
Grantee is prohibited from discriminating in its rates or
.charges or from granting undue preferences to any Subscriber,
potential Subscriber, or group of Subscribers or potential
Subscribers, provided, however, that a Grantee may offer
temporary, bona fide promotional discounts in order to attract
or maintain Subscribers, so long as such discounts are offered
on a non-discriminatory basis to similar classes of Subscribers
throughout the City: a Grantee may offer discounts for the
elderly, the handicapped, or the economically disadvantaged, and
such other discounts as it is expressly entitled to provide
under federal law, if such discounts are applied in a uniform
and consistent manner, and a Grantee may enter into bulk service
agreements with multiple dwelling unit owners, if the rates
under such agreements are established and applied in a uniform
and consistent manner. A Grantee shall comply at all times with
83
all applicable federal, state, and City laws, and all executive
and administrative orders relating to non-discrimination.
16.2 Equal Employment Oprortun=. A Grantee shall not
refuse to employ, discharge from employment, or discriminate
against any Person in compensation or in terms, conditions, or
privileges of employment because of race, calor, religion,
national origin, sex, age, or any other basis prohibited by
federal or state law. A Grantee shall comply with all federal,
state, and local laws and regulations governing equal employment
opportunities.
16.3 Subscriber Privacy.,
16.3.1 Grantee Shall Protect Subscriber Privacy.
A Grantee shall at all times protect the privacy of all
Subscribers pursuant to the provisions of Section 631 0£ the
Cable Act, 49 U.S.C. U 551, and 30-A M.R.S.A. 4 3010(6-A). A
Grantee shall not condition Subscriber service on the
Subscriber's grant of permission to disclose information which,
pursuant to federal or state law, cannot be disclosed without
the Subscriber's explicit consent.
16.3.2 Selling Subscriber Information Prohibited.
Neither a Grantee nor its agents or employees shall, without the
prior and specific written authorization of the Subscriber
involved, sell or otherwise make available for commercial
purposes the names, addresses, or telephone numbers of any
Subscriber or Subscribers, or any information that identifies
the individual viewing habits of any Subscriber or Subscribers.
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17.0 MTSCELLNNECUS PROVISIONS
17.1 Compliance With Laws. A Grantee .shall comply with
all applicable federal, state, and local laws and regulations as
they become effective, unless otherwise stated.
17.2 Force Majeure. A Grantee shall not be deemed in
default with provisions of its Franchise where performance was
rendered impossible by war or riots, civil disturbances, floods,
or other natural catastrophes beyond the Grantee's control, and
a Franchise shall not be revoked or a Grantee penalized for such
noncompliance, provided that the Grantee takes immediate and
diligent steps to bring itself back into compliance and to
comply as soon as possible under the circumstances with its
Franchise without unduly endangering the health, safety, and
integrity of the Grantee's employees or property, or the health,'
safety, and integrity of the public, Public Rights-of-Way,
public property, Or private property.
17.3 Connections to Systgru use of Anten
17.3.1 Subscriberh Artggh Devicgg.
Subscribers shall have the right to attach devices to a
Grantee's System to allow them to transmit signals or services
for which they have paid to VCR's receivers, and other terminals
provided that such terminals are located within the Subscriber's
premises, and provided that such transmissions do not result in
interference with the operations of Grantee's System, or
violations of signal leakage compliance standards. Subscribers
also shall have the right to use their own legally acquired
remote control devices and tuners, and other similar equipment,
and a Grantee shall provide.informdtion to consumers which will
65
allow them to adjust such devices so that they may be used with
the Grantee's System. -
17.3.2 Requiring Disconnectign of Antennas
Prohibited. A Grantee shall not, as a condition of providing
service, require a subscriber or potential Subscriber to remove
any existing antenna, or disconnect an antenna except at the
express direction of the Subscriber or potential Subscriber, or
prohibit or discourage a Subscriber from installing an antenna
switch, provided that such equipment and installations are
consistent with applicable codes.
17.4 Calculation of Time. Unless otherwise indicated,
when the performance or doing of any act, duty, matter, or
payment is required hereunder and a period of time or duration
for the fulfillment of doing thereof is prescribed and is fixed
herein, the time shall be computed so as to exclude the first
and include the last day of the prescribed or fixed period of
duration time.
17.5er', abilit If any term, condition, or
provision of this Ordinance shall, to any extent, be held to be
invalid or unenforceable, the remainder hereof shall be valla in
all other respects and continue to be effective. In the event
of a subsequent change in applicable law so that the provision
which had been held invalid is no longer invalid, said provision
shall thereupon return to full force and effect without further
action by the city and shall thereafter be binding on the
Grantee and the City.
17.6 Captions. The captions and headings of this
ordinance are for convenience and reference purposes only and
86