HomeMy Public PortalAbout1980_04_09_O006 Amending the Town Code to Add Cable Franchises,%
TOWN OF LEESBURG
IN
LOUDOUN COUNTY, VIRGINIA PRESENTED April 9, 1980
ORDINANCE NO. 80-0-6 ADOPTED April 9, 1980
AN ORDINANCE: ADDING A NEW CHAPTER TO THE TOWN CODE ESTABLISHING
REGULATIONS AND PROCEDURES FOR AND CONTROL OF CABLE
TELEVISION SYSTEMS AND THE GRANTING OF FRANCHISES ~
ORDAINED by the Council of the Town of Leesburg, Virginia,
as follows:
SECTION I. The Town cOde is her~b~ 'amended bY adding a new
chapter, to be numbered Chapter 5.1, which shall read as follows:
Chapter 5.1
CABL~ TELEVISION REGULATION.
Article I. General Provisions.
Sec. 5.1-1.
This Chapter shall be known and may be cited as the "Cable
Television Regulations" of the town.
Sec. 5.1-2. Purpose.
The purpose of this chapter is to provide for regulation
and control of any cable television system operating in the
town.
Sec. 5.1-3. Definitions.
Where used within this chapter, unless the context clearly
indicates otherwise, the following words and terms shall have
the meaning indicated below:
(a) "FCC" shall mean the Federal Communications Commission
or its successor.
(b) "Franchise" shall mean an authorization granted
pursuant to this chapter and applicable state law in terms of
a privilege, permit and license to construct, operate and
maintain a cable television system within the town. Any such
authorization,in whatever form granted, shall not include any
license or permit required for the privilege of transacting
(2)
and carrying on a business within the town as required by
other ordinances and laws of the town.
(c) "Franchisee" shall mean the person, firm or cor-
poration granted a franchise by the town under the provisions
of this chapter, and the lawful successor, transferee or
assignee of said person, firm or cOrporation.
(d) "Property of Franchisee" shall mean all property
owned, installed or used within the town by a franchisee in
the conduct of a cable television system business under the
authority of a franchise granted pursuant to this chapter.
(e) "Subscriber" shall mean any person or entity
receiving for any purpose any service of the cable
television system including, but not limited to, the conven-
tional cable television system service or retransmission of
television broadcast, radio signals, franchisee's original
cablecasting and the local government, education and public
access channels and other services including, but not limited
to, leasing of channels, data and facsimile transmission, pay
television and police, fire and similar public service
communication.
(f) "Cable Television system or systems" shall mean any
facility which is operated to perform for hire, either in
whole or in part, the service of receiving, amplifying,
modifying or originating television, radio or other electrical
signals for the purpose of transmitting or distributing such
signals by wire, cable or other means to subscribing members
of the public, except that this definition shall not include
(1) any system which serves fewer than 20 subscribers or
(2) any system which serves only residents of one or more
contiguous apartment dwellings under common ownership,
control or management, and commercial establishments located
on the premises of such dwellings.
(g) "Signal~" whether distant, local radio, television
~r kinds of channels such as Class I, II, III and IV, shall be
_§iven _the m~aninEs foUnd .......... in applicable FCC Rules
and Regui~tionS~
(h) "Converter" shall mean an electronic device, which
converts signals to a frequency not susceptible to interference
within the television receiver of a subscriber an~ by an
appropriate channel selector, also permits a subscriber to
view all signals delivered at designated dial locations.
(i) "Monitoring" shall mean observing a one-way communi-
cati0ns~ signal, or the absence of a signal,wh~ther the signal
is observed by visual or electronic means for any purpose
whatsoever.
(3)
(j) "Pay Television" shall mean the delivery over the
Cable Television System of video signals to subscribers for
a fee or charge (over and above charge for basic service)
on a per program, per channel or other subscription basis.
(k) "Local origination channel" shall mean a channel
which is programmed by the cable system and subject to its
exclusive control.
(1) "Cable~asting" shall mean originating programming
over a cable television system.
(m) "Town Manager" shall mean the manager of the
town or an official authorized by him to administer
the terms, provisions and regulations of this chapter.
(n) "Earth Station" shall mean the electronic equipment
and hardware necessary to receive signals from satellites.
(o) "Franchise territory" shall mean all the area within
the corporate limits of the Town of Leesburg and any future
extension thereof by annexation.
Article II. General Franchise Provisions.
Sec. 5.1-4. Grant of Franchise.
Operation of a Cable Television System within the town
shall be permitted only upon the application for and subse-
quent grant of a franchise under the terms of this chapter.
Sec. 5.1-5. Length of ~ranchise.
The initial term of any franchise granted under this
chapter shall be for a period of 15 years. An extension of
the initial franchise term may be granted in accordance with
Section 5.1-15 of this chapter.
Sec. 5.1-6. Franchise not Exclusive.
The right to use and occupy town streets for a cable
television system shall not be exclusive, and the town reserves
the right to grant a similar use of said streets to any person,
company, corporation or other entity at any time during the
initial or subsequent period of any cable television franchise.
Article III. Transfer or Assignment of a Franchise.
Sec. 5.1-7. Certain Transfers or Assignment~0hibite~.
No transfer or assignment of a franchise shall be approved
(4)
or considered by the Town Council within two years of the
effective date of the initial term of a franchise.
Sec. 5.1-8. Transfer or Assignments.
(a) Except as otherwise provided, no franchise granted pur-
suant to this chapter shall be assigned or transferred,
either in whole or in part, or leased, sublet, or mortgaged
in any manner, nor shall title thereto, either legal or
equitable, or any right, interest or property therein, pass
to or vest in any person, either by the act of the company or
by operation of law without the consent of the Town Council,
which consent shall not unreasonably be withheld. The
granting, giving or waivin~ of any one or more of such consents
shall not render unnecessary any subsequent consent or consents.
(b) The town specifically reserves the right, in determinin~
whether or n~t to authorize a transfer under this s~ction,..to
consider~the entire price and/or consideration to be pa~d
by any proposed transferee, including the allocation of value for
the franchise as it actually or potentially affects the rates to
subscribers at that time or in the future. The town may also
take into account the extent to which a proposed transfer may
potentially cause, require or justify (in whole or in part), a
rate increase or request for rate increase. The town is specific-
ally authorized to deny, restrict or condition its authorization
of any transfer on the grounds mentioned hereinabove or on any
related grouqds under which the town.~ay at~s_~ql~49ptio~__d~te~mine
(c) The franchisee may pledge, mortgage, hypothecate or
otherwise transfer, as may be required, an interest in the
cable 'television system to any lender in order to obtain financing
for the Cable Television System. Such transfer, pledge,
mortgage or hypothecation may, if required by the lender, in-
clude the authority to sell the Cable Television System, sub-
ject to consent of the town council, upon mortgage default by
the franchisee. Such approval shall not be unreasonably with-
held. In this event, any such sale approved will require the
new owner to comply with all terms and conditions of this
chapter as well as the original franchise agreement and franchise
ordinance.
Sec. 5.1-9. Sale or Transfer of Stock or other Ownership.
One or more sales or transfers of stock or other ~wnership, by operation
of iaw or b~h~se, or creation of new stock, by which an aggregate of more
than 10 ~_r~ent of franchisee stock or other for~-of interest' shall b~-~§~ed
-'~in a party- or part/eS Who are non~§tockholders or non-Qwners as -~
-~of the'~ effective date of the franchis~ shall be an .assignment
within the meaning of this article. For the purpose of this
section, stock ownership shall be determined in accordance with
the principles set forth in Section 5.4-4 of the Internal
Revenue Code of 1954 as the same existed on August 16, 1954.
(5)
Sec. 5.1-10. Notice of Transfer or Assignment.
A franchisee shall promptly notify the Town Manager of
any proposed change in, or transfer of, or acquisition by
any other party of control of the franchise. For the purpose
of determining whether it shall consent to such change, trans-
fer or acquisition of control, the town may inquire into the
qualifications of the prospective controlling party, and the
franchisee shall assist the town in any such inquiry. In the
event that the Town Council adopts a resolution denying its
consent and such change, transfer or acquisition of control
has been effected, the Town Council may cancel the franchise
unless control of the franchise is restored within 30 days to
its status prior to the change, or to a status acceptable to
the Town Council. Any mortgage, pledge or lease shall be
subject and subordinate to the rights of the town under this
chapter or other applicable law.
Article IV. Termination and Renewal.
Sec. 5.1-11. Revocation.
The Town Council reserves the right to revoke the
franchise, and all rights and privileges pertaining thereto,
in the event the franchisee violates any of the material pro-
visions of this chapter, or is found to have practiced any
fraud or deceit upon the town or the public; provided, however,
that complaints by the public shall be considered pursuant to
the provisions of Section 5.1-44 of this chapter. Prior to any
revocation proceedings under this section, the franchisee shall
be given 60 days' notice in writing by certified mai% which
notice shall state in detail the grounds upon which the town
seeks revocation. If the material violation has not been
remedied to the satisfaction of the town, the Town Council shall
have the right to revoke said franchise, and all rights, privi-
leges and license derived therefrom, forthwith by resolution.
At the time any franchise has been so revoked, the Town Council
may require the former franchisee to remove all wires, cables
and all other equipment associated with.the cable television
franch~se.i'at its eXpen~e.
sec. 5.1-12. Foreclosure.
Upon notice of the prospective foreclosure or other
judicial sale of all or a substantial part of the system,
or upon the termination of any lease covering all or a sub-
stantial part of the system, the franchisee shall notify
the Town Manager of such fact, and such notification shall
be treated as a notification that a change in control of the
franchisee has taken place, and the provisions of Article III
of this chapter entitled "Transfer or Assignment of the
Franchise" shall apply.
(6)
Sec. 5.1-13. Reserved
Sec. 5.1-14. Expiration.
Twelve months preceding the expiration of the initial
term of a franchise granted pursuant to this chapter, the
town shall have the right, at its election, to:
(a) renew or extend the franchise as provided in
Section 5.1-15
(b) invite new applicants for the franchise or
(c) purchase the system.
Sec. 5.1-15. Renewal or extension.
A franchise may be renewed or extended at the sole
option of the town for a period of five years. Renewal con-
sideration shall include but not be limited to the reports
prepared throughout the life of the franchise reviewing
the system's technical performance, the development of
cable services, the cost of said services and a comparison
of similar cable systems in other communities. The town
retains the right to modify the terms of a franchise within
the then applicable provisions of state law as a condition
of any such renewal or extension.
Sec. 5.1-16. Town'purchase of system upon revocation or expiration.
In the event that the town revokes a franchise, pursuant
to appropriate provisions of this chapter, or upon the expir-
ation of a franchise, the town shall have the right to purchase
the cable system at a price not to exceed its then fair market
value. The fair market value shall be determined by an.indepen-
dent accounting firm, selected by the franchisee and the to.wn~
in accordance with generally accepted appraisal and accounting
principles, except that any value attributable to the actual
franchise right itself or to good will of the cable system shall
be specifically excluded. The cost of such appraisal sh~ll be
shared equally by the franchisee and the town.
(7)
Sec. 5.1-17. Continuity of service mandatory.
A franchisee shall be required to provide continuous
service to all subscribers in return for payment of the
established fee. If a franchisee overbuilds, rebuilds,
modifies, sells the system or the town revokes, fails to
renew a franchise or the franchise becomes void, a franchisee
is required as part of its franchise to continue to operate
the system until an orderly and lawful change of operation
is effectuated. Under no circumstances shall this period of
operation exceed six months from the date of occurrence of
any of the above events. In the event a franchisee fails to
operate the system for five consecutive days without prior
approval of the Town Manager or the franchisee fails to
continue operation on the occurrence of any of the events given
in this section, the town or its agent shall have the right to
operate the system until such time that a new operator is
selected. If the town is required to fulfill this obligation
for the franchisee, the franchisee shall reimburse the town
for any costs or damages that result from the franchisee's
failure to operate the system as required.
Sec. 5.1-18. Eminent domain.
Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, the right of the
town to acquire the property of the franchisee through the
exercise of the right of eminent domain, and nothing herein
contained shall be construed to contract away or to modify or
abridge, either for a term or in perpetuity, the town's
right of eminent domain with respect to any public utility
or franchise.
Article
Franchise Territory; Construction
Timetable; Extension of Service.
Sec. 5.1-19. Franchise Territory
(a) The franchisee shall construct and operate at a
minimum the initial Cable Television System so as to provide
service through all parts of the franchise territory having a
density of at least 60 residential dwelling units per mile of
plant, or at the density submitted in the franchisee's cable
television application, whichever is lower. The "initial"
Cable Television System will be considered as all of the system
included on the map submitted with the franchisee's application.
(b) Extensions to the initial system and any. extensions
in any annexed areas shall be subject to the same density stan-
dards. At a minimum, the franchisee shall construct one mile of
cable plant per year upon receipt of a notice to proceed from
the manager. Notwithstanding the above, the franchisee shall
not be required to commence construction in these areas until
the initial Cable Television System is constructed.
{8)
Sec. 5.1-20.
Construction Timetable.
(a) The franchisee shall construct the necessary facili-
ties to permit basic service reception capabilit~ including
construction of 20 percent of the cable distribution plan~
within 18months of the date of the franchise agre.ement.
Within 90 days of the date of the franchise agreement, the
franchisee shall submit a construction timetable detailing
the location and geographic sequence of the construction of
the head-end and distribution plant leading to basic service
and special service capability for every dwelling unit within
the town, subject to aforementioned density standards.
(b) Within four years of the date of the franchise agreement,
the franchisee shall have completely installed and have under
operation a cable television system providing basic service
and special service capability to all dwelling units within
the franchise territory, subject to density limitations provided herein.
Capability shall be defined as the providing of basic
services or special services to subscribers within sixty
days of an application for either or both services, including
sa~ei~i~e ~iS~r~Su~e~ progr'ams.
(c) Failure on the part of a franchisee to meet any
of the requirements of this section shall be deemed a material
violation of this chapter and subject franchisee to revoca-
tion procedures established in Section 5.1-~ herein, unless said
time is extended by the Town Council. Such extensions may
or may not relieve the franchisee of the payment of penalties
set out in Section 5.1-49 at the sole option of the Town Council.
(d) A franchisee shall register with the FCC and comply
with all other filing requirements of Federal and State law
within 60 days of its acceptance of the franchise.
Sec. 5.1-21. Interconnection.
A franchisee may interconnect the system with any or all
other cable television systems in the area if otherwise lawful
and provided such other system agrees to the interconnection.
Interconnec~ion of systems may be done by direct cable con-
nection, microwave link, satellite or other appropriate method.
(a) Upon receiving the directive of the town to inter-
connect, the franchisee shall immediately initiate negotiations
with the other affected cable television system or systems in
order that costs may be shared equally for both constructiOn
and operation of the interconnection link.
(9)
(b) The Town Council may grant reasonable extensions of
time to interconnect or rescind its request to interconnect
upon petition by the franchisee to the Town Council. The
Town Council shall grant the request if it finds that the
franchisee has negotiated in good faith and the cost of
interconnection would cause an unreasonable increase in sub-
scriber rates.
(c) No interconnection shall take place without prior
approval of the Town Manager. A franchisee, in seeking approval
for interconnection, shall demonstrate that all signals to be
interconnected will comply with FCC technical standards for
all classes of signals and will result in a low level of
distortion.
(d) The franchisee shall cooperate with any intercon-
nection corporation, regional interconnection authority,
state or federal regulatory agency which may be hereafter
established for the purpose of regulating, facilitating,
financing or otherwise providing for the interconnection of
cable television systems beyond the boundaries of the town.
Article VI, Service Provisions
Sec. 5.1-22. Basic Subscriber Service.
(a) At the time housedrop connections are available,
the franchisee shall provide all subscribers who request
basic service with the minimum television
signals established in Section 5.1-28 of this chapter and
one local origination channel designated for public access
on a first come, nondiscriminatory basis. The public access
channel will.be available to public, educational, governmental
and any other users.
(b) The franchisee at its expense shall furnish upon
request one connection for each public school, county and
municipal office which is within the franchise territory and
not more than 250 feet from the franchisee's existing service
facilities.
Sec. 5.1-23. Special Services.
At such time as subscriber service is first available,
the franchisee,in addition to basic service, shall offer
special services available at higher rate~ which shall in-
clude one or more channels offering pay TV and additional
commercial satellite delivered channels.
(10)
Sec. 5.1-24. Virginia Public Telecommunications Council.
A franchisee shall also comply with all current and
future requirements of the Virginia Public Telecommunica-
tions Council.
Sec. 5.1-25. Reserved.
Sec. 5.1-26. Local Origination Programming.
Within 24 months from the date of a franchise agreement,
a franchisee shall provide at its expense facilities and equip-
ment necessary to originate local programming, providing one
local origination channel for that purpose. The franchisee of
a Cable Television System with a minimum of 3000 subscribers
shall cablecast a minimum of four hours of non-automated program-
ming within every 24 hour period, unless a franchisee receives
a waiver to this provision on an annual basis from the Town Council.
Sec. 5.1-27. Studio Facilities.
A franchisee shall provide a full color studio located
within a five mile radius of the Town of Leesburg. The studio
will be available to access cablecasters along with the services
of technical and production staff to be provided by the franchisee.
A franchisee shall also provide mobile color equipment for its
own use and that of local access users. The franchisee may lease
a studio and facilities from others to comply with this section.
Franchise applicants will be evaluated on the basis of plans and
rate schedules for production facilities which are most in the
public interest. Rate schedules may include different rates for
various classes of users.
Article VII.
Design and Construction Standards
Sec. 5.1-28. Channel Capacity.
A franchisee shall construct a Cable Television System
that shall have not less than 24 video channels or an equivalent
amount of band width capacity, including any local origination
franchisee ~perated station which may also serve as the public
access channel required by Section 5.1-22 of this chapter.
Sec. 5.1-29.
(11)
Overhead and Underground Construction.
Construction of trunk, feeder and drop cable may be con-
structed overhead where utility poles now exist and electric
or telephone lines or both are now overhead but, where no
overhead poles exist,all trunk, feeder and drop cable shall
be constructed underground. Any installation above ground
shall be considered as a special exception to Section 13-39
of the Town Code. Where present overhead utility poles, electric
lines and telephone lines are moved from overhead to underground
placement, all cable television distribution system cables
located aboveground within the affected area shall be similarly
moved and located underground at the same time and the cost of
the movement of the cable shall be solely the obligation of
the franchisee.
Sec. 5.1-30. Two-way Capacity.
The franchisee shall install a cable television system
with a technical capacity for non-voice return communications.
The franchisee's development of Class IV uses shall coincide
with the schedule submitted in the franchise application.
Sec. 5.1-31. Emergency Requirements.
The franchisee shall design and construct the cable
television system to provide for an audio override of all
channels simultaneously (except those involved in retransmission
of television broadcast programming), in case of public
emergencies.
''Sec.''5'.l'-32.~''sys'tem Uesign.
~Applicants for a franchise under this chapter will be
required to submit the cable system design as a part of the
franchise application process. The system design will be one
9f the factors evaluated during consideration of any franchise
awarded.
Sec. 5.1-33. Construction Requirements and Safety Standards.
(a) Methods of construction, installation and maintenance
of the town's cable television system shall comply with the
National Electric Code 1975 (ANSI CI-1975) to the extent that
such code is consistent with local law affecting the con-
struction, installation and maintenance of electric supply and
communications lines.
(12)
(b) Any tower constructed for use in the cable television
system shall comply with the standards contained in Structural
Standards for Steel Antenna Towers and Antenna Supporting
Structures, EIA Standards RS-222-A, as published by the Engineering
Department of the Electronic Industries Association, 2001 Eye
Street, N.W., Washington, D.C. 20006.
(c) Installation and physical dimensions of any tower con-
structed for use in any cable television system shall comply
with all appropriate Federal Aviation Agency regulations.
Sec. 5.1-34.
Construction, Supervision and Alteration after
Construction.~
(a) A franchisee shall construct, operate and maintain
the cable television system subject to the supervision of the
town and in strict compliance with all laws, ordinances, rules
and regulations affecting the system.
(b) The cable television system, and all parts thereof,
shall be subject to periodic inspection by the town.
(c) No construction, reconstruction or relocation of
the cable television system, or any part thereof, within the
streets shall commence until written permits have been obtained
from the town. In any permit so issued, the town Director of
Engineering or other officials authorized by the Town Manager
may impose such conditions and regulations as a condition of
the granting of the same as are necessary for the purpose of
protecting any structures in the streets and for the proper
restoration of such streets and structures, and for the pro-
tection of the public and continuity of pedestrian and
vehicular traffic.
(d) The Town Council may, from time to time, issue such
reasonable rules and regulations concerning the construction,
operation and maintenance of the cable television system as
are consistent with the provisions of this chapter and the
franchise issued pursuant to this chapter.
(e) The Town Council may require that any part or all of
the cable television system should be improved or upgraded by
the franchisee within a reasonable time thereafter (including,
without limitation, the increasing of channel capacity, the
furnishing of improved equipment and the institution of two-
way transmission); provided such improvement or upgrading of
the system is found to be economically feasible. For the pur-
pose of this subsection, a finding of economic feasibility shall
mean a finding that the capital costs to the franchisee of
such improvement or upgrading can reasonably be amortized
over the then remaining life of the franchise without sub-
stantially affecting the franchisees~,rate of return, or other
measure of profitability agreed to by franchisee and the town.
Sec. 5.1-35.
(13)
Use of Public Property.
(a) Should the grades or lines of the streets which the
franchisee is hereby authorized to use and occupy be changed
at any time during the term of the franchise, the franchisee
shall, if necessary, at its own cost and expense, relocate
or change its system so as to conform with such new grades or
lines.
(b) Any alteration to the water mains, sanitary sewerage
or storm drainage system or to any 'town,state or other public
facilities in the streets required on account of the presence
of the cable television system in the streets shall be made at
the sole expense of the franchisee. During any work on con-
structing, operating or maintaining of the system, the
franchisee shall also, at its own expense, protect any and all
existing structures belonging to the town or any other person.
All work performed by the franchisee pursuant to this section
shall be done in the manner prescribed by the Town.
Sec. 5.1-3'6. Interference with Public Projects.
Nothing in this ordinance shall be in preference or
hindrance to the right of the town to perform any public works
or public improvements of any description, and should the
system in any way interfere with the construction, maintenance
or repair of such public works or public improvements, a
franchisee shall, at its own cost and expense, protect or
relocate its system, or part thereof, as reasonably directed
by the town.
Sec. 5.1-37. Technical Standards.
The franchisee shall oc~ply with all existing and future rec~r~ments
of the FCC or its successor's governing technical standards. The town reserves
the right to adopt its own technical standards when permitted to do so.
Article VIII. Maintenance, Operations and Accounting
Records
Sec. 5.1-38. Books and Records.
(a) The franchisee shall maintain separate accounting
records, in accordance with generally accepted accounting
practices, of all its operations and transactions within the
town. The town shall have the right to inspect during normal
business hours, all books, records, maps, plans, financial
statements and other like materials of the franchise which
relate to its operation within the tow~ including expenses
attributed to the franchisee by any parent corporation. All
such information received by the town shall remain confidential
insofar as permitted by the Virginia Freedom of Information
Act, as now or hereinafter amended. The requirements of this
section shall be considered a material provision of this
chapter.
(14)
(b) The franchisee shall maintain a file of.records
open to public inspection in accordance with applicable FCC
rules and regulations or, if none exis~ in accordance with rules
and regulations adopted by the Town Council.
Sec. 5.1-39. Reports.
(a) Annual Report. Within 90 days of the close of its
fiscal year, the franchisee shall submit a written report
the Town Council, which shall include:
(1) A summary of the previous year's activities
and development of the cable television syste~.including but
not limited to services begun or dropped and subscribers gained
or lost;
(2) A summary of complaints, identifying both
number and nature of the complaints received and an explanation
of the disposition;
[3) A financial statement including balance sheet,
statement of income and expenditures~ and statement of changes
in financial position, which the town manager may require to
be an audited statement by giving notice to the franchisee 60
days prior to the deadline for submittal of the written report;
(4) A projected financial statement including all
of the above information, along with a capital program and
projected new services for the next two years;
(5) A reconciliation between previously pro-
jected estimates and actual audited figures;
(6) A list of all stockholders with a three
percent or more interest in the franchise, or ,if applicable,
its parent corporation, during the fiscal year and a list
of all officers and members of the Board of Directors of the
~anchisee and, if applicable, a list of all officers of the
parent corporation of the franchisee, and
(7) Such other information as the Town Manager
or the Town Council may reasonably direct.
(b) Annual Plant Survey Report. A franchisee shall
prepare and submit, by August 31 of each year, a complete
survey of its plant and a full report thereon to the Town
Council. The purpose of the report shall be to assure the
tn~n that the technical standards of the FCC and other applicable
standards established herein are being maintained. The plant
survey shall include appropriate electronic measurements and
shall be conducted in conformance with such requirements, in-
cluding supervision, as the Town M~nager may require.
(15)
(c) Income Tax Reports. In addition, a franchisee
shall furnish to the Town Manager, within ten days after
filing, a true copy of its federal income tax return.
Sec. 5.1-40. Service Requirements.
(a) A franchisee shall comply with all technical
standards and specifications established by the FCC through-
out the entire period of its franchise.
(b) A franchisee shall render efficient service, make
repairs promptly and interrupt the service only for good cause
and for the shortest time possible. Such interruptions, inso-
far as possible, will be preceded by notice and shall occur
during periods of minimum use of the system.
(c) A franchisee shall maintain its principal office
in the town, which shall be open during all usual business
hours, have a publicly listed telephone and be so.operated
that complaints and requests for repairs or adjustments may
be received and acted upon on a 24-hour basis.
Article IX. Rates; Complain~;Proceedings.
Sec. 5.1-41.
Filing and Publication of Rates, Rules and
Regulations.
A franchisee shall publish and file with the Town
M~anager schedules of all rates and charges for all services
offered to the subscribing public. Such schedules shall
plainly state the cost of each Particular service or combina-
tion of services, together with all rules, regulations and
requirements affecting the installation, maintenance and
provision of service or which otherwise affect the quality
or cost of such service to the subscriber. The manner and
form by which such schedules are published shall be reviewed
and approved by the Town Manager. Copies of all such
schedules shall be available to the public upon payment
of a reasonable fee equal to the cost of reproduction.
Sec. 5.1-42. Discriminatory or Preferential Practices Pro-
~hibited. '
The franchisee shall not, in its rates or charges, or
in making available the' services or facilities of its system,
or in its rules or regulations, or in any other respect, make or
grant a preference or advantage to any subscriber or potent~alsub-
$c~r of the cable television system, or to any user or
potential user of the cable television system; and shall not
subject any such person, to any prejudice or disadvantaqe. _ _
(16)
This provision shall not be deemed to prohibit promoti6nal
campaigns to stimulate subscriptions to the cable television
system or other l~gitimate uses thereof. Notwithstanding
the aforementioned, this provision shall not prohibit the
franchisee's establishment of special rates or charges for
subscribers eligible and participating in the town's real
estate tax relief for the elderly program or handicapped
persons, as defined in Section 46.1-104.1 (al) of the Code
of Virginia.
Sec. 5.1-43 Rates.
(a) A franchisee's initial rates for both basic sub-
scriber service and special services shall not exceed the rates
submitted in the franchisee's application as a part of its pro-
posal for a Cable Television System franchise for a minimum period
of one year. Thereafter, future rate increases throughout the
term of the franchise shall be governed by the procedures set out
in the franchise agreement between the town and franchisee. Cal-
culation of the time period that initial rates are valid will begin
following the first subscriber connection.
(b) Notwithstanding the above, the town reserves the right
to regulate cable installation and service fees for all cable
services upon the finding that monthly service charges for one or
more services or one or more installation charges exceeds by ten
percent the average charges in use by cable firms in other juris-
dictions within a 50 mile radius of Leesburg. Upon notice of this
finding to the franchisee, the franchisee shall reduce the offending
charges to within the ten percent limit prescribed within 30 days
from said notice, or the town shall implement permanent rate regu-
lation procedures for the life of the franchise. The town shall
have the sole authority to develop procedures and methodology for
rate regulation to insure reasonable rate regulation and a fair
return on investment by the franchisee in the cable system. In
determining a franchisee's rate base for reviewing proposed rate
increases, the town shall not in any event take into account any
value beyond the net book value of a cable plant then in existence
and devoted to cable television service. The regulation prodedure at
a minimum shall include hearings and 60 days'notice from the effec-
tive date of any rate increase requested.
Sec. '5.'1'-'44. ~compl'ai'nts.
(~ Complaints by any subscriber may be filed with the
franchisee in writing or delivered to the franchisee
orally in person or by telephone.
(b) Any complaints received from subscribers shall be
investigated by the franchisee and acted upon as soon as
possible, within one business day of the receipt.
(17)
(¢) The franchisee shall keep a maintenance service
log that will indicate the nature of each complaint, the
name of the employee of the franchisee receiving the complaint,
the date and time it was received, the disposition of the
complaint and time and date thereof. The log shall also
indicate specific steps taken by the franchisee to remedy
the complaint. This log shall be made available for
inspection upon request by the Town Manager.
(~) Notwithstanding the above, the franchisee shall
advise the Town Manager in writing on a quarterly basis of
all unresolved complaints. The nature and number of unresolved
complaints shall be considered by the Town Council during any
subsequent renegotiations for extension of any cable television
system franchise.
Article X. General Financial and Insurance Provisions
Sec. 5.1-45. Franchise Fee.
(a) As compensation for any franchise granted pursuant to
this chapter in consideration of permission to use the streets
and public ways of the town for the construction, operation,
maintenance and reconstruction of the cable television
system, the franchisee shall pay to the town an amount equal to
three percent of the franchisee's gross annual receipts from
all sources attributal to the operations of the franchise
within the town, including but not limited to pay cable,
advertising, leased access and any lump sum connection fees.
(b) Notwithstanding any other provision of this article,
should FCC regulations be amended in the future to allow the
town to receive a fee greater than that provided for herei~
the percentage of gross receipts established in Subsection 5.1-
44(a) above shall increase to five percent effective
January 1 in any year in which the cable television system has
3;000 subscriber connections.
(c) Payments to the town under this provision shall be
computed quarterly, for the preceding quarter as of March 31,
June. 30, September 30 and December 31. Each quarterly pay-
ment shall be due and payable no later than 30 days after the
applicable computation date. Each payment shall be
accompanied by a report showing the basis for the computation
and such other relevant material as required by the Town
Manager.
(d) Acceptance of any payment by the town should not be
construed as agreement ~hat the amount paid is in fact the
correct amount, nor shall such acceptance of payment be con-
strued as release of any claim for additional amounts payable
(18)
tO the town. Ail amounts paid shall be subject to audit and
recomputation by the town. In the event any such audit or
recomputation results in additional revenue payable to the town,
such amounts will be subject to a ten percent simple interest
charge.
(e) Nothing in this section shall be interpreted as
relieving a franchisee of local taxes.
Sec. 5.1-'46.' A'pplication Fee.
Each applicant for a franchise under this chapter shall
submit a non-refundable filing fee in the amount of
$1,000 which shall be payable to the Town of Leesburg, Virginia.
All such fees shall be credited to the general fund of the
town for the purpose of investigation of franchise applications
and enforcement and administration of the provisions of this
N°~e~W ~
chapter, ithstanding the above,the full amount of the
franchise f shall be returned to all applicants if no franchise
is awarded.
Sec. 5.1-47. Liability, Indemnification and Bonding.
(a) Upon acceptance of any franchise under this chapter,
the franchisee shall pay all damages and penalties which the
town may legally be required to pay as a result of granting
the franchise. These damages or penalties shall include, but
shall not be limited to, damages arising out of the installation,
operation or maintenance of the cable television system,
whether or not any act or omission complained of is authorized,
allowed or prohibited by this chapter.
(b) Franchisee shall provide and pay for any legal defense
of the town with regard to all actions mentioned above.
(c) Franchisee shall maintain,, throughout the term of
its franchise, liability insurance in companies acceptable to
the town sufficient to cover such indemnification, and naming
a~ ~n~ur~d ~h~ ~wn and the franchisee with minimum limits
of $500,000 on account of bodily injuries to or death of
one person, $1,000,000 on account of bodily injuries
to or death of more than one person as a result of any
one accident or disaster, and $500,000 on account of damage
to property, and it will further deposit the policy or
policies of such insurance along with certificates
therefor with the town within 30 days of execution of
any franchise agreement.
(d) Within 30 days of execution of a franchise agreement,
a franchisee shall provide and maintai~ as herein provided, a
faithful performance corporate surety bond or other performance
guarantee in a form approved by the town attorney, running to
the town, in the penal sum of $100,00~ payable to the town.
The bond shall be released by the town in full upon the.
franchisee meeting the requirements of subsection 5.1-20(b)
herein.
(19)
Sec. 5.1-48. Security Fund.
Prior to execution of a franChise agreement, a franchisee
shall deposit $ 5,000 in an escrow account with
the town Director of Finance, to be held by the town and invested
in.accordance to Sec. 2-84 (b) of the Town Code, through__out
the initial an~ any subsequent ter~ of a
-~n~hise.-- This fund wii% PrOvide cash as security for
the ~aithful-Performance by the franchisee of the provisions
of this chapter and of its franchise relating to construction
andcompliance with all orders, permits and directions of any
department of the town having jurisdiction over its acts or
defaults. Within 30 days after notice to it that any amount
has been withdrawn from the security fund deposit as provided
herein, the franchisee shall deposit in such account a sum of
money equal to the amount withdrawn.
Sec. 5.1-49. Penalties.
For violation of the provisions of this chapter, penalties
shall be chargeable by the manager to the security fund unless
corrected within 10 days of written notice thereof by certified
mail to the franchisee as follows:
(a)
(b)
For failure to submit plans indicating
expected dates of installation of various~
parts of the system; 'i $25/day
For failure to commence operations in
accordance with requirements herein~ $50/day
(c)
For failure to complete construction
and installation of system as required;
$50/day
(d)
For failure to supply data requested by
town in connection with installation,
construction, customers or
financial reports;
$25/day
(e) For failure to restore the security
fund as required within the specified
thirty days, the entire cash deposit
remaining(if any) and the full amount of
the performance bond shall be forfeited.
The franchisee may request the manager exclude from the 10 day
correction perio~ delays equal to the time lost for acts of
· God, labor disputes, abnormal weathe~ c~n~itions, fires or
ot]~er causes outside its control.
(20)
Article XI. Administration
Sec. 5.1- 50. Administration by Manager.
The day to day regulation, enforcement and administration
of any franchise granted under this chapter shall be the
responsibility of the Town Manager.
Sec. 5.1- 51. Functions of the Town Manager.
The Town Manager's authority and responsibilities with
respect to a franchise granted pursuant to this chapter shall
include the following:
(a) To assist in the preparation of the invitation to
bid for cable television system franchises; to establish
criteria for review and ranking of franchise applications; to
review and screen applications for franchises and to make
selection recommendations to the Council.
(b) To monitor and enforce all aspects of the franchisee's
performance in meeting all terms, provisions, requirements and
construction schedules established in this chapter.
- (c) To advise and make reCommendations ~o the COuncil on
matters which may constitute grounds for revocation of a
franchise in accordance with this chapter.
(d) To monitor and investigate where appropriate complaints
against the franchisee by any person.
Article XII Rights of Individuals Protected.
Sec. 5.1-52. Discriminatory Employment Practices Prohibited.
Franchisees shall not deny service, access or otherwise
discriminate against subscribers, channel users or general
citizens on the basis of race, color, religion, national
origin or sex. Franchisees shall strictly adhere to any
equal employment opportunity requirements of the FCC. Franchisees
shall comply with all other applicable federal, state and town
laws, and all executive and administrative orders relating to
nondiscrimination.
Sec. 5.1-53. Restrictions on'Cabl'e Monitoring..'
Except as otherwise provided by this section, the
franchisee shall not monitor, or arrange for the monitoring,
(21)
or permit any person, either expressed or implied through
their knowledge, to monitor any subscriber outlet or
receiver for any purpose whatsoever, without the specific
written authorization of the subscriber being monitored,
and other than to the extent so authorized by such sub-
scriber. Any information gathered by such monitoring
shall not be sold, given or otherwise transferred to any
person not in the employ of the franchisee or the person
supplying the service involved, provided that the franchisee
may conduct such monitoring as may be reasonably necessary for
(1) the maintenance and operation of the cable television
system; and (2) the collection of data for the purpose of
ascertaining viewer response to programming. Any data collected
for the purpose of ascertaining viewer response to programming
may be disseminated on an aggregate basis only and may not
in any way reveal or indicate any information on individual
subscribers.
Sec.. 5.1-54. Privacy and Other Human Rights.
The franchisee and the town shall maintain constant vigil-
ance with regard to possible abuses of the right and privacy
of other human rights of any subscriber, programmer or general
citizen resulting from any device or signal associated with
the system.
Sec. 5.1-55. Permission of' Property Owner Required.
No cable, line, wire, amplifier, converter or other piece
of equipment owned by a franchisee shall be installed by a
franchisee without first securing the permission of the owner
of any property or easement involved. If such permission is
later revoked, whether by the original or a subsequent owner,
the franchisee shall remove forthwith any of its equipment
which is both visible and movable and promptly restore the pro-
perty to its original condition at the franchisee's expense.
Sec. 5.1-56. 'Sale o'f Subscriber Lists Prohibited.
A franchisee shall not sell, or otherwise make available,
lists of the names and addresses of its subscribers, without
permission of the subscribers, to anyone other than authorized
town officials for purposes of enforcing franchise provisions.
Article XII~ Miscellaneous Provisions
Sec. '5.1-57. Fraud.
It shall be unlawful for any person to defraud or
attempt to defraud any cable television system franchisee by
attempting to obtain any service therefrom without payment as
described in Sec. 18.2-187.1 of the Code of Virginia. Any
person who violates this provision, if the value of service,
(22)
cr~it or benefit procuredl is $100 or more, shall be guilty
of { Class 6 Felony; or if the value be less than $100
shall be guilty of a Class 1 Misdemeanor,. as.penalties for
sucf are set out in the Code of Virginia.'
Sec. 5.1- 58. No Recourse Against the Town.
The franchisee shall have no recourse whatsoever against
the town or its officials, boards, co~missions, agents or
employees for any loss, cost, expense or damage arising
out of any provision or requirement of this chapter or
because of the enforcement of this chapter, unless the same
shall be caused by criminal acts or by willful or gross
negligence.
Sec. 5.1- 59. Official Name 'of Franchise.
Any franchisee licensed to operate a cable television
system within the town shall include the word "Leesburg" in
the official name of the said firm or corporation so
authorized, upon the request of the town.
Sec. 5.1-60. Extensions Outside Corporate limits.
(a) The franchisee shall not extend cable television'
se~¢ice to residents outside the franchise territory until it
has met the requirements of Section 5.1-20(b) of this chapter.
Where extensions of the Cable Television System are made out-
side the corporate limits of the town and connect to the Cable
Television System's headend, the monthly rate for basic service
and special service, ltQ customers outside of town shall contain a
$1.Q0 surcharge_which the franchisee sha~l P~S directly _
through to the town on a quarterly basis. This fee
reimburses the town for costs of administration and regulation
of the Cable Television Syst~.The franc]~see's receipts frc~cableservices
outside the corporate limits of the town shall be excluded from
the gross annual receipts used to calculate the franchise fee.
(b) For the purpose of determining the number of subscribers
with respect to Sec. 5.1-26 of this chapter, subscribers residing
outside the town shall be included.
Section II. This ordinance shall be in full force and effect
from and after its passage.
PASSED this 9th day of April , 1980.
Attest: