HomeMy Public PortalAbout2000_10_31_O33 Amending the TC re Cable Television Franchise regulationsThe Town of
eesburg,
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ORDINANCE NO. 2000-0-33
PRESENTED
ADOPTED
October 31, 2000
October 31, 2000
AN ORDINANCE:
AMENDING THE TOWN CODE BY ADDING CHAPTER 5. lA
CABLE TELEVISION REGULATIONS AND REPEALING
CABLE TELEVISION REGULATIONS CHAPTER 5.1
WHEREAS, the Town desires to exercise good stewardship over the public
rights-of-ways of the Town by governing the construction, operation and maintenance of
cable television systems therein; and
WHEREAS, a comprehensive review of the existing cable television ordinance
was conducted by the Cable Television Advisory Commission, town staff, and
consultants from the firm of Rice, Williams Associates; and
WHEREAS, this process included a community needs assessment, consumer
survey, technical evaluation of the system, .compliance review, and evaluation of a
renewal proposal; and
WHEREAS, the Cable Television Advisory Commission held a televised public
input session May 13, 1999 to received comments from the public on cable television
services; and
WHEREAS, after due consideration, the Cable Television Advisory Commission
voted July 12, 2000 to recommend that the Town Council approve a new ordinance; and
WHEREAS, the deputy town manager and town attorney recommends adding this
ordinance to the Town Code.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. iA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia
as follows:
SECTION I.
hereby repealed.
SECTION Il.
Chapter 5.1, Cable Television Regulations, of the Town Code is
Chapter 5. IA, Cable Television Regulations, of the Town Code is
hereby adopted to read as follows:
Town of Leesburg
Cable Television Regulations
ARTICLE I. IN GENERAL
Sec. 5.lA-1. Short title.
This Chapter shall be known and may be cited as the "Cable Television Regulations" of
the Town.
Sec. 5.1A-2. Purpose.
The purpose of this Chapter is to provide for regulation and control of any cable
television system operating in the Town.
Sec. 5.1A-3. Definitions.
Where used within this Chapter, unless the context clearly indicates otherwise, the
following words and terms shall have the meaning indicated herein. When not inconsistent with
the context, words used in the present tense include the future, words in the plural number include
the singular number. The word "shall" is mandatory and "may" is permissive. Words not
defined shall be given their common and ordinary meaning.
Additional services means programming or services for which an additional charge is
made beyond the charge for basic service, including, but not limited to, movies, concerts, variety
acts, sporting events, programming sales to satellite dish owners, pay-per-view programs,
interactive services, leased access and any other service utilizing any facility or equipment of a
cable system which operates pursuant to a Franchise granted by the Town Council.
Applicant means any Applicant for a Franchise pursuant to this Chapter.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
Basic cable service shall mean any service tier which includes the retransmission of local
television broadcast signals; public, educational and government access channels; and any other
video programming or service a cable operator chooses to place on the basic tier.
Cable television system or systems shall mean any facility consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment that is
designed to provide cable service which includes video programming and which is provided to
multiple subscribers within a community, except that such definition shall not include (i) a system
that serves fewer than twenty (20) subscribers, (ii) a facility that serves only to retransmit the
television signals of one or more television broadcast stations, (iii) a facility that serves only
subscribers in one or more multiple unit dwellings under common ownership, control, or
management, unless such facility or facilities use any public rights-of-way, (iv) 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 1934, 47 U.S.C. { 201 et seq., 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, or (v) any facilities of any electric utility used solely for
operating its electric Systems.
Cablecasting shall mean originating programming over a cable television system.
Cable services shall mean (i) the one-way transmission of subscribers of (a) video
programming, or (b) other programming services; and (ii) subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming services as
specified in the Cable Act and as may be amended.
Commence operation means the time and date when operation of the cable system is
considered to have commenced, which shall be when the system is fully rebuilt or fully
constructed.
Commercial subscriber means a subscriber who receives cable service in a place of
business where the cable service may be utilized in connection with a business, trade or
profession.
Communications policy act or Cable Act means the Cable Communications Policy Act of
1984, the Cable Television Consumer Protection and Competition Act of 1992, and the 1996
Telecommunications Act, as it may be amended or succeeded.
Converter shall mean an electronic device, which converts signals to a frequency not
susceptible to interference within the television receiver of a subscriber and, by an appropriate
channel selector, also permits a subscriber to view all signals delivered at designated dial
locations.
Earth station shall mean the electronic equipment and hardware necessary to receive
signals from satellites.
FCC shall mean the Federal Communications Commission or its successor.
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
AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. IA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
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 and carrying on a business
within the Town as required by other ordinances and laws of the Town.
Franchise territory or franchise area shall mean all or a portion of the area within the
corporate limits of the Town and any future extension thereof by annexation or boundary line
adjustment.
Grantee means the person, firm or corporation 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.
Gross revenues means all revenues derived directly or indirectly by the Grantee,
affiliates, or subsidiaries, from operation of the cable system within the Franchise area, including
but not limited to: basic and tier services; premium and pay-per-view services; leased access;
installation; connection; advertising; Internet; home shopping; equipment charges; non-
entertainment services; trades and goods or services. Gross revenues shall exclude government
imposed taxes, fees or assessments, which are excluded pursuant to the Cable Act. Gross
revenues shall also be adjusted for bad debt.
Leased access channel means any channel designated or dedicated for use by persons
unaffiliated with the Grantee.
Local origination channel shall mean a channel which is programmed by the cable
system and subject to its exclusive control.
Monitoring shall mean observing a one-way communications signal, or the absence of a
signal, whether the signal is observed by visual or electronic means for any purpose whatsoever.
Notice means written notice addressed to the Grantee at its principal office within the
Town or such other office as the Grantee has designated to the Town as the address to which
notice shall be transmitted to it, or written notice addressed to the Town Manager at the Town's
principal office, which notice shall be certified and postmarked not less than seven (7) days prior
to that day in which the party giving such notice shall commence any action which requires the
giving of notice. In computing said seven (7) days, holidays recognized by the Town shall be
excluded.
Person means any individual, partnership, association, organization, corporation or other
legal entity.
Plant mile means a linear mile of strand-beating cable as measured on the public rights-
of-way or easement from pole to pole or pedestal to pedestal.
Property of grantee shall mean all property owned, installed or used within the Town by
a Grantee in the conduct of a cable television system business under the authority of a Franchise
granted pursuant to this Chapter.
Public property means any real property owned by the Town or any other government
entity other than a highway, sidewalk, easement or dedication.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
Public way orpublic rights-of-way means the surface, the air space above the surface,
and the area below the surface of any public rights-of-way, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, waterway, or other public rights-of-way now or hereafter held by
the Town which shall entitle the Town and the Grantee to the use thereof for the purpose of
installing and maintaining the Grantee's cable system.
Resident means any person residing in the incorporated limits of the Town.
Residential subscriber means a subscriber who receives cable service in an individual
dwelling unit where the service is not to be utilized in connection with a business, trade or
profession.
Sale shall include any transfer, exchange or barter.
School shall mean a school under the operation, control and supervision of the Loudoun
County School Board.
Service tier shall mean a category of cable service or services provided by a Grantee's
cable television system and for which a separate rate is charged.
Signals, whether distant, local radio, television or kinds of channels such as class I, II, III
and IV, shall be given the meanings found in applicable FCC rules and regulations.
State means the State of Virginia
System facilities means the cable system constructed for use within the incorporated
limits of the Town, without limitation, the headend, antenna, cables, wire, lines, tower, amplifiers,
converters, health and property security systems, equipment of facilities located within the
incorporated limits of the Town designed, constructed or wired for the purpose of producing,
receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means,
audio, radio, television and electronic signals to and from subscribers in the Town.
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.
ARTICLE II. GRANT; TERM; NONEXCLUSIVITY OF FRANCHISE; CONDITIONS
Sec. 5.1A-4. Franchise necessary to operate.
It shall be unlawful to commence or engage in the construction, operation or maintenance
of a cable television system in, under, over, along, across or upon the public way within the Town
for the purpose of reception, transmission, collection, amplification, origination, distribution or
redistribution of audio, video, data or other signals without a Franchise issued by the Town and
unless such Franchise is in full force and effect. This section shall not be deemed to require the
grant of a Franchise to any particular person or entity or to prohibit the Town from restricting the
number of Grantees should it determine such a restriction would be in the public interest.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
Sec. 5.1A-5. Grant of franchise.
(a) Grant. Pursuant to the authority of the State and local ordinances and, subject to the
terms and conditions set forth herein, the Town can grant revocable and non-exclusive
Franchises, acting pursuant to the Town's applicable Charter provisions, Ordinances, rules and
regulations, to construct and operate a cable television system in, under, over, along, across or
upon the public rights-of-way and public grounds within the Town of Leesburg in accordance
with the laws of the Town of Leesburg, the State of Virginia, and United States of America.
Such Franchises shall be solely for the right to provide cable television services. In exercising
rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons, interfere
with any installations of the Town, any public utility serving the Town or any other person
permitted to use the public rights-of-way and public grounds nor unnecessarily hinder or obstruct
the free use of the public rights-of-way and public grounds. The grant of one Franchise does not
establish priority for use over the other present or future permit or Franchise holders or the
Town's own use of the public rights-of-way and public grounds. The Town shall at all times
control the distribution of space in, over, under or across all public rights-of-way or public
grounds occupied by the cable system. All rights granted for the construction and operation of
the cable system shall be subject to the continuing right of the Town to require such
reconstruction, relocation, change or discontinuance of the appliances used by the cable system
in the public rights-of-way, alleys, avenues, and highway of the Town, as shall in the opinion of
the Town be necessary in the public interest.
No grant of any Franchise shall affect the right of the Town to grant to any other person a
right to occupy or use the public rights-of-way, or portions thereof, for the construction and
operation of a cable television system within the Town or the right of the Town to permit the use
of the public rights-of-way or public grounds of the Town for any purpose whatever. By
accepting a Franchise, the Grantee thereby acknowledges the Town's right to make such grants
and permit such uses. No privilege or power of eminent domain is bestowed on Grantee by the
grant of a Franchise. No partnership or interest in real property owned by the Town is conveyed
by this grant of Franchise.
Sec. 5.1A-6. Length of franchise.
The term of the Franchise shall commence upon execution of the Franchise by the Town
and the Grantee and shall continue for a period specified in the Franchise, unless sooner
terminated as provided herein.
Sec. 5.1A-7. Franchise not exclusive.
The right to use and occupy Town rights-of-way for a cable television system shall not be
exclusive and the Town reserves the right to grant such additional Franchise for a cable television
system to any person, company, corporation or other entity at any time during the initial or
subsequent period of any cable franchise.
Sec. 5.1A-8. Conditions.
(a) Event of conflict. In the event of conflict between the terms and conditions of this
Ordinance and the Franchise, this Ordinance shall control.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
(b) General town ordinances. Any Franchise granted by the Town is hereby made
subject to the general Ordinance provisions now in effect and hereafter made effective. Nothing
in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances
of the Town regarding permits, taxes, fees to be paid, or manner of construction.
(c) Use of public rights-of-way. For the purpose of operating and maintaining a cable
television system in the Town, the Grantee may erect, install, construct, repair, replace,
reconstruct and retain in, on, over, under, upon, across and along the public rights-of-way and
public rights-of-way within the Town such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are
necessary to the operation of the cable television system, provided, however, that Grantee
complies with all design, construction, safety, and performance provisions contained in this
Ordinance, the Franchise, and other applicable State and local ordinances. The Grantee shall use
its best efforts to also obtain pole attachment agreements for use of any utility poles or other
utility facilities required in connection with the provision of services, provided such agreements
are available upon reasonable terms and conditions.
(d) Police and regulatory powers reserved. Grantee shall comply with all applicable
laws, Ordinances and regulations enacted by the Town pursuant to any such power. Any conflict
between the terms of this Ordinance or the Franchise and any present or future lawful exercise of
the Townfs police and regulatory powers shall be resolved in favor of the latter.
(e) Town's right to perform public works. Nothing in this Ordinance shall be in
hindrance to the right of the Town or any governmental authority to perform or carry on, directly
or indirectly, any public works or public improvements of any description. Should the cable
television system in any way interfere with the construction, maintenance or repair of such public
works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate
its cable television system, or cable television system thereof, as reasonably directed by the Town
officials or any governmental authority.
(f) Law governs. In any controversy or dispute under this Ordinance, the law of the
State shall apply.
ARTICLE III. APPLICATION PROCEDURES AND CONTENTS
Sec. 5.1A-9. Application Procedures and Requirement.
(a) Notification of existing grantee. In the event an application is filed proposing cable
television service to areas already served in whole or in part by an existing Grantee, a copy of
such application shall be served by the Applicant, by registered or certified mail, upon that
Grantee, provided that Applicant has notice that Grantee serves such areas. Proof that a copy of
the application has been served upon any current Grantee shall be provided to the Town. No
application for an overlapping Franchise shall be processed until such proof of service has been
furnished to the Town.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5.lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
(b) Application fee. Each application for an initial Franchise under this Chapter shall be
accompanied by a filing fee in the amount of $10,000.00 which shall be payable to the Town of
Leesburg, Virginia. All such fees shall be credited against the general fund of the Town to ensure
the Town is reimbursed for all costs incurred in the application process).
(c) In addition to the fee set forth in paragraph (b) above, each Applicant shall be jointly
and severally obligated to reimburse the Town for its full cost incurred in the application process.
Such costs shall include, without limitation, internal staff and employee time and expenses, and
the fees and expenses of any consultants, experts, accountants, attorneys or other person(s)
utilized by the Town to assist it in its evaluation of the applications or in connection with the
application process. Said costs shall be paid by each Applicant as they are incurred by the Town.
An Applicant's failure to make such reimbursement upon demand of the Town shall be grounds
for dismissal of its application.
(d) Scope and contents. All applications for an initial Franchise shall be filed in
conformance with and subject to the provisions of this Chapter. This Chapter shall not be
construed to prescribe the detail in which the Applicant shall make its presentation nor in any way
to restrict the scope of its presentation. Applicants have a wide latitude to formulate their
proposals in an innovative fashion. Applicants are encouraged to propose a modem, efficient,
cost-effective system which will facilitate quality maintenance practices, deliver a variety of
marketable services, and provide the flexibility needed to adjust the changing technology and new
developments in the industry. However, at a minimum, the following matters must be carefully
covered and in such detail that the Town Council can make fully informed judgments concerning
the adequacy of the proposal and the Applicant's legal, character, financial, technical and other
qualifications to construct and operate a cable television system in the Town.
(e) Franchise area. The Applicant shall submit sufficiently detailed information to allow
the Town to determine whether the size of the requested Franchise is in the public interest,
considering the size of the area requested relative to the technical, fiscal and legal qualifications
of the Applicant; the potential for development in the near future for the area requested; and other
considerations.
(f) Legal qualifications.
(1) All applications shall contain the name, address and telephone number of the
Applicant and of the principal or the representative to whom inquiries should be made.
(2) Ownership information.
(A) The application shall identify its officers and directors and all
persons or other entities having any ownership interest whatsoever in the
Applicant, voting or non-voting (e.g., general and limited partners, voting and
non-voting shareholders), legal, beneficial, or equitable, direct or indirect. For
each such person or entity identified, the application shall provide complete
information as to their names, addresses, and amount and type of interest, and if
an entity, the same ownership information required of the Applicant.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5. lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
(B) For each person and entity listed in paragraph (A) above, the
application shall provide the following information:
1. Whether their ownership or holding was acquired at the same
per-share-cost as other owners, and whether services or other in-kind
contributions were included as a basis for acquiring their ownership.
2. All of their ownership interests in other
communications media, including cable television operators, whether
franchised or unfranchised (e.g., SMATV), television stations, radio
stations, newspapers, and telephone services, and whether such media
serve or have significant circulation in the Town.
3. Whether they are local investors (investors whose
permanent residence is in or around the Town), and if so, what role they
will have in the decision(s) of Applicant relative to operational and
programming policies and procedures.
4. Whether any buy-out agreement exists, whether
written or verbal, giving other stockholders, persons or entities the right
to acquire the interest of local or other equity holders in the future. If so,
the Applicant shall submit copies of all such agreements.
5. The Applicant shall also submit copies of all
partnership, management and joint venture agreements which involve the
participation of local ownership, as herein defined.
(C) The application shall disclose in detail the extent to which any Town
employee or Town official would have a "personal interest" in the Applicant, the
Franchise, or the award of the Franchise to the Applicant. For purposes of this
section, the term personal interest shall have the same meaning as set forth in
Sec. 2.1-639.2 of the Virginia Code.
(D) The application shall also identify the form under which the
Applicant does business and proof that the Applicant has registered to conduct
business in the State of Virginia and any other political subdivision where
business is or will be conducted.
(3) The application shall provide full identification and ownership details, as in
paragraph (2)(A) above, for all affiliates, partners, subsidiaries and parent entities of
Applicant.
(4) The application shall provide information concerning the management
structure of the Applicant, including all levels of management of multiple system
operators and the relationship of the proposed cable operator to its affiliates.
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AN ORDINANCE: AMENDING THE TOWN CODE BY ADDING CHAPTER 5.lA
CABLE TELEVISION REGULATIONS AND REPEALING CABLE TELEVISION
REGULATIONS CHAPTER 5.1
(g) Character qualifications.
(1) Applicant shall identify fully and supply records applicable to any
involvement of the Applicant, any of its managers, or any person or entity identified
pursuant to Sec. 5.1-13(b) or (c) of this Chapter, as a party in any past or pending
criminal proceeding, or any past or pending civil proceeding involving any of the
following: litigation involving cable television operations (franchised or unfranchised
e.g., SMATV), unfair or anticompetitive business practices, antitrust violations (State or
Federal) including instances in which consent decrees were entered, violations of
securities laws (State or Federal), false/misleading advertising, violations of FCC
regulations, racketeer influenced and corrupt organizations, or contraband forfeitures.
The application shall also supply detailed information concerning whether the Applicant
or any such person, entity or manager has ever been subject to a penalty, civil or criminal,
for failure to comply with any cable television franchise, has ever been involved in any
legal action involving any franchising authority, or has ever had any business license of
any type (defined to include FCC licenses, alcoholic beverage and restaurant licenses,
etc.) revoked or suspended, or had renewal denied.
(2) The application shall provide the following information as to other cable
systems or multichannel video delivery systems (including SMATV) presently or
formerly owned by or affiliated with the Applicant, any of its managers, or any person or
entity identified pursuant to Sec. 5.1-13(b) or (c) of this Chapter. With respect to all cable
systems presently owned and those cable systems disposed of within the preceding five
(5) years, the Applicant shall provide information as to the location of the system, miles
of plant, percent completed, density of area served, number of homes passed, number of
subscribers, channel capacity, access channels and equipment provided, institutional
networks provided, services offered, rates charged, market penetration, date Franchise
awarded, date acquired and date disposed of, and public officials or employees who may
be contacted for information regarding each such system. With respect to formerly owned
cable systems disposed of earlier than the preceding five (5) years and for all
multichannel video delivery systems (including SMATV), the application shall provide
information as to the location of the system, number of homes passed, number of
subscribers, channel capacity, date constructed or acquired and date disposed of.
(h) Financial qualifications and pro forma financial statements.
(1) Each application shall describe in detail the financing plan for the
construction and initial operation of the proposed cable system and provide proof of
financial capability. Each application shall include documentation that demonstrates and
assures the Applicant's financial viability, such as letters of commitment from financial
institutions which demonstrate the availability of sufficient funds to complete
construction of the proposed system. Proof of financial capability shall include:
(A) A showing of the sources, method (e.g., cash, cash plus credit,
services, etc.) and amount of equity capital. If the equity contribution is
borrowed, a description of the collateral and terms of the loan. All equity
commitments must be evidenced by appropriate documentation.
(B) A showing of the sources, amount and terms of debt capital, both
primary and secondary, accompanied by appropriate documentation. If funding is
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REGULATIONS CHAPTER 5.1
to be provided by any parent or affiliated entity, its source of funding must also
be documented.
(C) If Applicant is a multiple system operator, it shall give evidence of
the portion of the Grantee's sources of financing which is uncommitted and will
be applied to the proposed construction.
(2) Pro forma financial statements shall be required for a minimum of ten (10)
years beginning with the date the Franchise is accepted. Such pro formas shall include
income statements, sources and uses of funds, loan amortization information, anticipated
capital expenditures, construction costs, depreciation schedules, and operating expenses,
along with detailed assumptions on which the projections are based. The information and
assumptions shall include financial aspects of miles of plant to be built and type of
installation (aerial/underground), building schedule, headends, other capital investments
and planned coverage, debt/equity ratio, debt service costs, depreciation, operating costs
in detail, assumed market penetration rate, expected internal rate of return, discussion of
fixed and variable costs, and such other relevant information as the Town or its officers,
employees, agents or consultants deem appropriate.
(3) If the Applicant is an existing entity, it shall submit audited financial
statements for the last two (2) years or, if existing for less than two (2) years, for such
period of existence. If capital is to be raised or supplied by a parent company, Applicant
shall provide an audited financial statement for the parent company. Financial statements
prepared by a certified public accountant according to generally accepted accounting
standards and in conformity with generally accepted accounting principles (GAAP) may
be submitted in lieu of audited financial statements if the Applicant certifies that it has
not undertaken an audit of its financial statements and operations during the last two
years.
(i) Technical qualifications. The application shall describe any qualifications and cable
system experience of Applicant, including, but not limited to, the ownership, construction,
management, and operation of other cable television systems specifying the manner in which
Applicant participated; available personnel with technical qualifications and experience
committed to the proposed system design, construction and operation; construction contractors to
be used, if any; and technical consultants, if any. The application shall indicate the type of
participation and the qualifications of persons, consultants, contractors, etc. whose services will
be utilized.
(j) System construction plan. The Applicant shall submit to the office of the Town
Manager a detailed construction plan, supported by detailed maps indicating areas of construction
and projected time frames in six (6) month increments. The construction plan shall comply with
all requirements set out in Chapter 5.1 and shall reasonably delineate the portions of the system
that will be using aerial cable, the portions of the system that will be utilizing underground cable
and the portions of the system, if any, that will be using wireless technology. The Applicant shall
demonstrate that sufficient pole and conduit space exists for the placement of its facilities and
shall provide a copy of any agreement between the Applicant and the utility providing for the use
of any utility facilities.
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(k) System design--layout and equipment. The Applicant shall provide a
comprehensive, but concise, description of the proposed system design. Such description shall
include the system configuration, the manufacturer and model of each type of equipment used, a
spectrum utilization chart, and a complete list of all services, video or otherwise, which will be
offered. The proposed system design shall comply with all requirements set out in Chapter 5.1.
(1) Customer services. The Applicant shall set forth detailed plans for system
maintenance, customer complaints, billing procedures and inquiries, record keeping, subscriber
privacy, policies related to outages, and personnel.
(m) Impact of an additional grantee. To assist the Town in making its evaluation of
the impact of additional Grantees, the Applicant shall provide detailed information relating to:
(1) The economic justification, if any, for issuing a Franchise to a subsequent
Applicant;
(2) The impact of the proposed Franchise on private property rights;
(3) The impact of the proposed Franchise on public convenience;
(4) The public need for such Franchise;
(5) The potential benefit of such Franchise;
(6) The per-strand-mile densities of the areas the Applicant proposes to serve and
extent to which the Applicant intends to utilize bulk contracts; and
(7) A demonstration that there is sufficient usable space available on each pole to
be utilized by Applicant, or in any trenches or conduits where underground facilities are
proposed. Costs for rearrangement of facilities or replacement of poles shall be
reasonably detailed.
Sec. 5.lA-10. Application Process for an Initial Franchise.
(a) Initial review and request for additional applications. Upon the submission of an
application for an initial Franchise, the Town Manager shall review the application to ensure that
all information provided is correct and whether the Applicant has the financial, technical and
managerial background and resources to provide the proposed services. If necessary, the Town
Manager may request an Applicant to provide additional information. If the application for an
initial Franchise requests a Franchise term greater than five (5) years, the Town Manager shall
also promptly notify the Town Clerk to advertise receipt of the application and the advertisement
shall also invite the submission of additional Applications for a Franchise within a period of thirty
(30) days. Should additional application(s) be submitted, they shall be subject to all of the
requirements of Chapter 5.1, as amended, including the opportunity for public comment provided
by Sec. 5.1-23(a). However, no additional requests for applications shall be required. If additional
application(s) are submitted within the prescribed time period, all of the applications shall be
considered together at the public hearing required by Sec. 5.1-23(a).
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(b) Completeness of application. The Town Manager shall accept, reject as incomplete
or deficient, or accept with conditions, all applications for an initial Franchise. Within sixty (60)
days of receipt of any application, the Town Manager shall notify Applicant as to any facial
deficiencies.
(c) Public hearing. Upon acceptance of any application for an intitial Franchise or, if
accepted with conditions, upon the conditions being met, the Town Manager shall notify the
Town Clerk to advertise the public hearing at which the Town Council will consider such
application(s). Existing Grantees and members of the public will be given an opportunity to
submit relevant comments and the advertisement shall provide for at least a thirty (30) day period
for the submission of such material. The public hearing shall commence after acceptance of the
application by the Town Manager, or if accepted with conditions, after all conditions are met, but
in no event sooner than thirty (30) days following the date on which written comments are due.
(d) Summary report. The Town Manager, in consultation with the Cable Television
Advisory Commission, shall issue, or cause to be issued, a report summarizing each application
for an initial Franchise which shall contain a recommendation to the Town Council as to
approval, denial, or approval with conditions. The Town Council may obtain a consultant to
perform studies and reviews to assist the Town Manager. In the event such application is filed
proposing a cable service area which overlaps, in whole or in part, an existing Grantee's service
area, an independent consultant's report may be obtained to address the factors set forth in Article
V of this Chapter, as amended. The Applicant(s) shall be responsible for any cost thereof as set
forth in Section 5.1-10 herein.
Sec. 5.lA-11. Evaluation.
(a) General evaluation criteria. Evaluation of any Franchise proposals will primarily
include, but will not be limited to, the following:
(1) Legal capacity and character.
(A) Whether the Applicant is not precluded from cable system ownership
by any FCC rule or Federal or State law.
(B) Whether the Applicant has not been convicted of any felonies or
serious misdemeanors or found liable in certain civil actions as specified in Sec.
5.1-14(a) hereof.
(C) Whether the Applicant has made full disclosure of any campaign
contributions which it has made to any Town official involved in the Franchise
procedure and of any interest in the Applicant which may be owned or controlled
by such an official.
(D) Identification of the persons who will be owning and/or controlling
the proposed Franchise.
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(2) Financial capability.
(A) Whether there is sufficient capital to develop the cable system.
(B) The reasonableness of the Applicant's financial plan.
(3) Construction design and timing.
(A) The general quality and sophistication of the cable facilities plan.
(B) Applicant's construction schedule.
(C) Applicant's description of the service area and whether it plans to
provide cable service to all housing units in the Franchise territory.
(4) Scope and quality of cable television service.
(A) Provisions for pay television and satellite delivered programming.
(B) Plans for realistic but community-responsive local origination
programming.
(C) Reasonableness of proposed rates and Grantee policies for
implementing future rate increases.
(D) Alternative cable service levels and the time frame for their delivery.
(E) Innovations to enhance high penetration rates.
(F) Innovative application of educational access programming.
(G) Procedures for handling subscriber complaints.
(H) Measures to ensure protection of subscriber privacy.
(I) Provision for access channels, equipment and facilities.
(J) Provision for institutional network.
(5) Projected management and staffing capacity.
(6) Previous cable system operations experience.
(A) Evaluation of cable operations in other communities.
(B) Ability to meet deadlines and provide services on schedule in other
communities.
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(C) Ability to meet public service/community needs.
(7) Public interest proposals.
(A) Access and local origination.
(B) Institutional network.
(C) Other areas of interest to the community.
Sec. 5.1A-12. Evaluation criteria-desirability of an additional grantee.
In the event an application is filed proposing a Franchise area which could overlap, in
whole or in part, an existing Grantee's service area, the Town Council, in considering such
application, shall, in addition to the factors set forth in Sec. 5.1-18 of this Chapter, take into
account:
(a) Whether the public welfare will be enhanced by the grant of an additional Franchise;
(b) Economic considerations, including the long term viability of multiple Grantees to
ensure the availability of high-quality cable service and other public benefits to the greatest
number of Town residents at the lowest economically feasible price;
(c) The impact upon and possible disruption of public and private property rights by
multiple Grantees;
(d) The impact on the public convenience, including the ability of the Town Council to
regulate multiple Grantees;
(e) The public need and potential benefit;
(f) The Applicant's plan for constructing its aerial and underground facilities;
(g) The impact on the financial and operating capability of existing Grantees;
(h) The loss of uniformity of service as may be provided by a single Grantee; and
(i) Whether access to cable service might be denied to certain potential subscribers based
on the income of residents of a particular area.
(j) Reasonableness of access and institutional network proposals.
Sec. 5.1A-13. Additional information.
The Town may continue or postpone the public hearing as it deems appropriate. It may
request additional information of the Applicar~t, existing Grantees or officers and employees of
the Town. The Applicant or existing Grantees may submit studies, reports or opinions addressing
the need for an additional Grantee, the economic effect of an additional Grantee, or other
appropriate matters.
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Sec. 5.1A-14. Action by Town Council.
Upon consideration of all relevant information and completion of the public hearing and
negotiation processes, the Town Council may reject the application, or award a Franchise with or
without conditions. Any such award of a Franchise shall require the affirmative vote of a majority
of all members elected to the Town Council.
ARTICLE IV. TRANSFER OR ASSIGNMENT
Sec. 5.1A-15. Certain transfers or assignments prohibited.
(a) Transfer of franchise. A Franchise shall not be assigned or transferred, either in
whole or in part, or leased, sublet, or mortgaged in any manner, nor shall title to the cable system,
legal or equitable, or any right, interest or property therein, pass to or vest in any person without
the prior written consent of the Town. Any transfer of the Franchise without the prior consent of
the Town shall make the Franchise subject to cancellation unless the Town shall have consented
thereto.
(b) Ownership transfer. The Grantee shall not sell, transfer or dispose of fifteen percent
(15%) or greater ownership interest in the Grantee or more at one time of the ownership or
controlling interest in the system, or twenty-five percent (25%) cumulatively over the term of the
Franchise of such interests to a corporation, partnership, limited partnership, trust or association,
or person or group of persons acting in concert without the consent of Town. Every sale, transfer,
or disposition of fifteen percent (15%) at any one time or twenty-five percent (25%) cumulatively
over the term as specified herein, shall make the Franchise subject to cancellation unless the
Town shall have consented thereto.
(c) Transfer of control. The Grantee or any parent company shall not change control, in
whatever manner exercised, of the Grantee or any parent company without the prior written
consent of the Town. Every change, transfer, or acquisition of control of the Grantee shall make
the Franchise subject to cancellation unless and until the Town shall have consented thereto.
(d) Exceptions. Exceptions to this section shall be as specified in the Franchise.
(e) Town approval. For the purpose of determining whether it shall consent to such
change, transfer, or acquisition of the Franchise or ownership or control, the Town may inquire
into the legal, financial, character, technical and other public interest qualifications of the
prospective transferee or controlling party, and the Grantee shall provide the Town with all
required information. The Town reserves the right to impose certain conditions on the transferee
as a condition
(f) Town action. If required by Federal law and regulations, the franchising authority
has not taken action on the Grantee's request for transfer within one hundred twenty (120) days
after receiving any information requested by the Town, consent by the Town shall be deemed
given of the transfer consent.
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(g) No waiver of town property rights. The consent or approval of the Town or any
other public entity to any transfer of the Grantee shall not constitute a waiver or release of the
rights of the Town in and to the public property or public rights-of-way, and any transfer shall, by
its terms, be expressly subordinate to the terms and conditions of this Ordinance and the
Franchise.
(h) Signatory requirement. Any approval by the Town of transfer of ownership or
control or the Franchise or Grantee shall be contingent upon the prospective party becoming a
signatory to the Franchise.
(i) Assumption of control. The Town agrees that any financial institution having a
pledge of the Franchise or its assets for the advancement of money for the construction and/or
operation of the Franchise shall have the right to notify the Town that it or its designees
satisfactory to the Town will take control and operate the cable television system. Further, said
financial institution shall also submit a plan for such operation that will insure continued service
and compliance with all Franchise obligations during the term the financial institution exercises
control over the system. The financial institution shall not exercise control over the system for a
period exceeding one year, unless extended by the Town at its discretion and during said period
of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the
Town finds that such transfer, after considering the legal, financial, character, technical and other
public interest qualifications of the applicant are satisfactory, the Town will transfer and assign
the rights and obligations of such Franchise as determined in the public interest. The consent of
the Town to such transfer shall not be unreasonably withheld.
(j) Right of First Purchase. The Town reserves the right of first purchase in any sale,
transfer, lease, assignment or disposal of the system. Should the Town exercise this option, the
Town shall pay the market value.
(k) Price consideration. The Town specifically reserves the right, in determining
whether or not to authorize a transfer under this section, to consider the entire price and/or
consideration to be paid by any proposed transferee, including the allocation of value of 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 specifically authorized to deny, restrict or condition its authorization of any transfer on the
grounds mentioned herein above or on any related grounds under which the Town may at its sole
option determine.
Sec. 5.1A-16. Notice of transfer or assignment.
A Grantee 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, transfer or acquisition of control, the Town
may inquire into the qualifications of the prospective controlling party, and the Grantee shall
assist the Town in any such inquiry. The prospective assignee or purchaser shall pay the Town
reasonable transfer related costs within thirty (30) days of a decision by 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.
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ARTICLE V. TERMINATION AND RENEWAL
Sec. 5.1A-17. Revocation.
(a) Grounds for revocation. The Town reserves the right to revoke any Franchise
granted hereunder and rescind all rights and privileges associated with the Franchise in the
following circumstances, each of which shall represent a default and breach under this Ordinance
and the Franchise grant:
(1) If the Grantee shall default in the performance of any of the material
obligations under this Ordinance, the Franchise, or under any related documents,
contracts and other terms and provisions entered into by and between the Town and the
Grantee.
(2) If the Grantee shall fail to provide or maintain in full force and effect the
liability and indemnification coverage or the performance bond as required herein.
(3) If the Grantee shall violate any orders or rulings of any regulatory body
having jurisdiction over the Grantee relative to this Ordinance or the Franchise.
(4) The Grantee's construction schedule is delayed later than the schedule
contained in the Franchise or beyond any extended date set by the Town.
(5) Failure to restore system-wide or area specific service after ninety-six (96)
consecutive hours of interrupted service, except when approval of such interruption is
obtained from the Town or if the Grantee ceases to operate and provide services for any
reason within the control of the Grantee.
(6) Material misrepresentation of fact in the application for or negotiation of the
Franchise or any extension or renewal thereof.
(7) If the Grantee ceases to provide cable services for any reason within the
control of the Grantee over the cable television system.
(b) Effect of circumstances beyond control of grantee. The Grantee shall not be
declared at fault or be subject to any sanction under any provision of this Ordinance in any case,
in which performance of any such provision is prevented by reasons beyond the Grantee's control.
A fault shall not be deemed to be beyond the Grantee's control if committed by a corporation or
other business entity in which the Grantee holds a controlling interest whether held directly or
indirectly.
(c) Effect of pending litigation. Pending litigation or any appeal to any regulatory body
or court having jurisdiction over the Grantee shall not excuse the Grantee from the performance
of its obligations under this Ordinance or the Franchise unless a regulated agency or court so
provide. Failure of the Grantee to perform such obligations because of pending litigation or
petition may result in forfeiture or revocation pursuant to the provisions of this section.
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(d) Procedure Prior to Revocation.
(1) The Town shall make written demand that the Grantee comply with any such
requirement, limitation, term condition, rule or regulation or correct any action deemed
cause for revocation. If the failure, refusal or neglect of the Grantee continues for a
period of thirty (30) days following such written demand, the Town shall place its request
for termination of the Franchise upon a regular Council meeting agenda. The Town shall
cause to be served upon such Grantee at least seven (7) days prior to the date of such
Council meeting, a written notice of this intent to request such termination, and the time
and place of the meeting, notice of which shall be published by the Town Clerk at least
once, seven (7) days before such meeting in a newspaper of general circulation within the
Town.
(2) The Council shall hear any persons interested therein, and shall determine in
its discretion, whether or not any failure, refusal or neglect by the Grantee was with just
cause.
(3) If such failure, refusal or neglect by the Grantee was with just cause, as
defined by the Town, the Council shall direct the Grantee to comply within such time and
manner and upon such terms and conditions as are reasonable.
(4) If the Council shall determine such failure, refusal, or neglect by the Grantee
was without just cause, then the Council shall, by resolution, declare that the Franchise of
the Grantee shall be terminated and the performance bond forfeited unless there is
compliance by the Grantee within a specified period of time not to exceed ninety (90)
days.
(e) Disposition of facilities. In the event a Franchise is revoked or not renewed, the
Town may in its sole discretion under the terms of the Cable Act, purchase the system or effect a
transfer of ownership of the system to another party or require Grantee to remove its facilities
from Town rights-of-way.
(f) Restoration of property. Upon revocation or non-renewal, the Town may require
Grantee to remove all or a portion of its plant. At such time as the Grantee removes its plant,
structures and equipment, the Grantee shall refill, at its own expense, any excavation that shall be
made by it and shall leave all public way and places in as reasonably good a condition or better
than that prevailing prior to the Grantee's removal of its equipment and appliances without
affecting the electrical or telephone cable wires or attachments. The Town shall inspect and
approve the condition of the public way and public places and cables, wires, attachments, and
poles after removal. The liability, indemnity, insurance and performance bond as provided herein
shall continue in full force and effect during the period of removal and until full compliance by
the Grantee with the terms and conditions of this paragraph, this Ordinance and the Franchise.
(g) Restoration by town; reimbursement of costs. In the event of a failure by the
Grantee to complete any work required above, or any other work required by Town law or
ordinance within the time as may be established and to the satisfaction of the Town, the Town
may cause such work to be done and the Grantee shall reimburse the Town the cost thereof within
thirty (30) days after receipt of an itemized list of such costs or the Town may recover such costs
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through the performance bond provided by Grantee. The Town shall be permitted to seek legal
and equitable relief to enforce the provisions of this section.
Sec. 5.1A-18. Expiration.
Twelve (12) months preceding the expiration of the initial term of a Franchise granted
pursuant to this Chapter, the Town shall have the fight, at its election, to:
(a) Renew or extend the Franchise as provided in Section 5.1-33;
(b) Invite new Applicants for the Franchise; or
(c) Purchase the system.
Sec. 5.1A-19. Renewal or extension.
A Franchise may be renewed or extended at the sole option of the Town for a period as
specified in the Franchise and as allowed by Federal law. Renewal consideration 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.
Sec. 5.1A-20. Town purchase of system upon revocation or non-renewal.
(a) Non-renewal. If a renewal of the Franchise held by the Grantee is denied and the
franchising authority acquires ownership of the cable system or effects a transfer of ownership of
the system to another person, any such acquisition or transfer shall be at 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.
(b) Termination. If the Franchise held by the Grantee is revoked for cause and the
franchising authority acquires ownership of the cable system or effects a transfer of ownership of
the system to another person, any such acquisition or transfer shall be at an equitable price.
Sec. 5.1A-21. Continuity of service mandatory.
A Grantee shall be required to provide continuous service to all subscribers in return for
payment of the established fee. If a Grantee overbuilds, rebuilds, modifies, sells the system or the
Town revokes, fails to renew a Franchise or the Franchise becomes void, a Grantee 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 (6)
months from the date of occurrence of any of the above events. In the event a Grantee fails to
operate the system for five (5) consecutive days without prior approval of the Town Manager or
the Grantee fails to continue operation on the occurrence of any of the events given in this
section, the Town or its agent shall have the fight to operate the system until such time that a new
operator is selected. If the Town is required to fulfill this obligation for the Grantee, the Grantee
shall reimburse the Town for any costs or damages that result from the Grantee's failure to
operate the system as required.
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Sec. 5.1A-22. Eminent domain.
(a) Right to acquire property. 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 Grantee
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.
(b) Right to require removal of property. Upon denial of renewal of the Franchise, or
upon its revocation or expiration, as provided for herein, the Town shall have the right to require
the Grantee to remove, at its own expense, all portions of the cable television system required by
public necessity from all public ways within the Town.
ARTICLE VI. FRANCHISE TERRITORY; CONSTRUCTION
TIMETABLE; INTERCONNECTION; CONSTRUCTION;
MAINTENANCE
Sec. 5.1A-23. Franchise territory.
(a) The Grantee shall construct and operate at a minimum the initial cable television
system so as to provide service through all parts of the Franchise territory and offer service to all
residents in the Franchise territory.
Sec. 5.1A-24. Construction timetable.
The Franchise shall specify the Grantee's construction timetable. The timetable shall
include a quarterly schedule.
Sec. 5.1A-25. Interconnection.
A Grantee 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.
Interconnection of systems may be done by direct cable connection, microwave link, satellite or
other appropriate method.
(a) Upon receiving the request of the Town to interconnect, the Grantee 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.
(b) The Town Council may grant reasonable extensions of time to interconnect or rescind
its request to interconnect upon petitions by the Grantee to the Town Council. The Town Council
shall grant the request if it finds that the Grantee has negotiated in good faith and the cost of
interconnection would cause an unreasonable increase in subscriber rates or is otherwise
technically infeasible.
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(c) The Grantee shall cooperate with any interconnection corporation, regional
interconnection authority, State or Federal regulatory agency which may be hereafter established
for the purpose of regulating, facilitation, financing or otherwise providing for the interconnection
of cable television systems beyond the boundaries of the Town.
Sec. 5.1A-26. Construction.
(a) Minimum requirements. The Grantee's system and associated equipment erected by
the Grantee within the Town shall be so located as to cause minimum interference with the proper
use of public rights-of-way, alleys, and other public rights-of-way, and to cause minimum
interference with the rights and reasonable convenience of property owners who adjoin any of the
said public rights-of-way, alleys or other public rights-of-way. No pole or other fixtures placed in
any public rights-of-way by the Grantee shall be placed in such a manner as to interfere with
normal travel on such public rights-of-way.
(b) Undue burden on the rights-of-way. Grantee shall not erect, install, construct,
repair, replace or maintain its cable television system in such a fashion as to unduly burden the
present or future use of the public rights-of-way or public rights-of-way. If Town in its
reasonable judgement, determines than any portion of the cable television system is an undue
burden, Grantee at its expense shall modify its cable television system or take such other actions
as the Town may determine is in the public interest to remove or alleviate the burden, and
Grantee shall do so within the time period established by the Town.
(c) No priority. This Ordinance does not establish any priority for the use of the public
rights-of-way and public rights-of-way by Grantee or by any present or future recipients of
Ordinances, Grantee' s or other permit holders. In the event of any dispute as to the priority of use
of the public rights-of-way, the first priority shall be to the public generally, the second priority to
the Town, the third priority to the State of Virginia and its political subdivisions in the
performance of their various functions, and thereafter, as between recipients of Ordinances,
Grantees and other permit holders, as determined by applicable laws.
(d) Cooperation. All Grantees are required to cooperate with the Town and with each
other. Each Grantee shall meet with the Town, other Grantee' s and users of the public rights-of-
way annually or as determined by the Town to schedule and coordinate construction in the public
rights-of-way.
(e) No additional rights. Grantee obtains no rights to or further use of the public rights-
of-way other than those expressly granted herein.
(f) Town maps. The Town does not guarantee the accuracy of any maps showing the
horizontal or vertical location of existing substructures. In public rights-of-way, where necessary,
the location shall be verified by excavation.
(g) Quality of construction. Construction, installation, operation, and maintenance of
the cable television system shall be performed in an orderly and workmanlike manner, in
accordance with then current technological standards.
(h) Parallel construction. All cables and wires shall be installed, where possible,
parallel with electric and telephone lines. Multiple cable configurations shall be arranged in
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parallel and bundled with due respect for aesthetic, safety and engineering considerations, and all
applicable codes.
(i) Maintenance and workmanship.
(1) Grantee's cable television system shall be constructed and maintained in such
manner as not to interfere with sewers, water pipes, trees, or any other property of the
Town, or with any other pipes, wires, conduits, structures or other facilities that may have
been laid in the public rights-of-way by or under the Town's authority.
(2) Grantee shall provide and use any equipment and appliances necessary to
control and carry Grantee's signals so as to prevent injury to the Town's property or
property belonging to any person within the Town. Grantee, at its own expense, shall
repair, renew, change and improve its facilities from time to time as may be necessary to
accomplish this purpose.
(3) Grantee shall not construct its cable television system in any manner that
requires any subscriber to install any cable, wire, conduits or other facilities, under or
over public rights-of-way.
(j) Weather. No underground installation or other work activities shall be initiated when
weather conditions prohibit proper restoration of disturbed areas in a timely manner. The Town
may waive the preceding requirement on a case-by-case basis, with conditions appropriate to the
circumstances.
(k) Traffic safety. Grantee shall comply with all local and State traffic requirements and
Uniform Traffic Safety Code regulations. Barricades or other barriers such as signs, traffic cones,
red flags, and warning lights, shall be utilized when necessary at all work sites frequented by the
public until an area is cleared for normal public use. Local law enforcement shall be contacted,
when necessary, to direct traffic. Before leaving a job site each day, Grantee's employees and
contractors shall be required to pick up all scrap materials and ensure that any construction
materials and tools are properly stored and covered and that derricks, planks and ladders are
removed from or piled at the roadside in such a manner as not to intrude upon traffic safety.
(1) Work within rights-of-way. Consistent with the Town's regulation of work within
public rights-of-way closing, and as thereafter amended, work in any part of a publicly
maintained public rights-of-way or rights-of-way must be approved by the Town. During repairs
or improvements, traffic on public rights-of-way must be maintained. Where full closing of the
public rights-of-way is required, the request for approval must be submitted to the Town at least
ten (10) days in advance. Where emergency closings are necessary, the Town is to be notified as
soon as possible. All closings are to be protected with signage in accordance with the Town's
local regulation and policy.
(m) Right to inspection of construction. The Town or its designee shall have the right
to inspect at any time the cable television system, together with any appurtenant property of
Grantee situated without or within the Town. Grantee shall cooperate fully with the Town during
all inspections, and shall provide access to all equipment, records, and other materials and
information necessary for such inspections. Except as otherwise provided by this Ordinance, the
Franchise, law, regulation or Ordinance, all inspections performed by the Town shall be initially
at the Town's sole cost and expense. If the Grantee is found not to be in material compliance with
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the terms of this Ordinance and all other applicable law, then the Grantee must reimburse the
Town for the costs of such inspections. This reimbursement is not to be considered a part of the
franchise fee.
(n) OSHA. All worker facilities, conditions, and procedures that are used during
construction, installation, operation, and maintenance of the cable television system shall comply
with the standards of the Occupational Safety and Health Administration and the State.
(o) Sedimentary soil erosion. All construction shall be in accordance with State and
local laws and regulation, regarding soil erosion. Grantee or Grantee's contractor shall correct
any violations or comply with any notices of violation in accordance with local, State, and
Federal law and regulation.
(p) Easements. Any easements over or under private property necessary for the
construction or operation of the cable television system shall be obtained by Grantee. Any
easements over or under property owned by Town other than the public rights-of-way shall be
separately negotiated with Town.
(q) Easement usage. In using easements, Grantee shall comply with all Federal, State,
and local laws and regulations governing the construction, installation, operation, and
maintenance of a cable television system. Without limitation, Grantee shall ensure that:
(1) The safety, functioning and appearance of the property and the convenience
and the safety of other persons not be adversely affected by the installation or
construction of facilities necessary for the cable television system.
(2) The cost of the installation, construction, operation, or removal of such
facilities be borne by Grantee.
(3) The owner of the property be reasonably compensated by Grantee for any
damages caused by the installation, construction, operation, or removal of such facilities
by Grantee.
(r) Construction oversight. Grantee shall respond to service complaints on a daily basis
during any construction or repair to the cable television system. Grantee shall maintain a log of
all service complaints, detailing the date of the call, the complainant's name, address and
telephone number, the substance of the complaint and steps taken or to be taken to resolve the
complaint. The log shall be available for inspection for two (2) years by the Town upon request.
(s) Emergency notification. Grantee shall provide the Town with a twenty-four (24)
hour emergency telephone number at which a named responsible adult representative of Grantee
(not voice mail or a recording) can be accessed in the event of an emergency.
(t) Notice of construction to residents. Grantee shall provide advance notice,
appropriate to the circumstances, prior to entry whenever desiring to enter or cross any private
property within Town or work in abutting public rights-of-way. By way of example, Grantee
shall provide at least two (2) days advance notice to affected property owners (such as by door
hanger) prior to construction or rebuild requiring entry 0n private property or work in the public
rights-of-way abutting such private property. During maintenance work, installation work, and
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outage repair, Grantee shall attempt to notify affected residences (such as by knocking and, if no
answer, leaving a door hanger) prior to entering private property. Work performed in an
emergency in easements or public rights-of-way to repair the cable television system is exempted
from this section.
(u) Underground installation. All installations shall be underground in those areas of
the Town where public utilities providing telephone and electric service are underground at the
time of installation. In areas where either telephone or electric utility facilities are above-ground
at the time of installation, Grantee may install its service above-ground, provided that at such
time as those facilities are required to be placed underground by the Town or are placed
underground, the Grantee shall likewise place its services underground without cost to the Town.
All cable passing under the roadway shall be installed in conduit. Where not otherwise required
to be placed underground by this Ordinance or the Franchise, the Grantee's cable television
system shall be located underground at the request of the adjacent property owner, provided that
the excess cost over the aerial location shall be borne by the property owner making the request.
Open trenching in the root zone of a public tree is prohibited except in cases where the trenching
falls outside the dripline of the tree involved. Exceptions will be allowed if, in the opinion of the
Town arborist, the impact of trenching upon the tree will be negligible. All public trees in excess
of 5 inches DBH, where there is insufficient space to bypass the dripline by trenching, must be
tunneled. The beginning/ending distance of the tunnel from the face of the tree in any direction is
determined by the diameter of the tree as specified by the accompanying table:
When the tree diameter at 4-½ feet is:
6 - 9 inches
10 - 14 inches
15 - 19 inches
over 19 inches
Trenching will be replaced by tunneling
at this minimum distance from the face
of the tree in any direction:
5 feet
10 feet
12 feet
15 feet
(v) Future underground facilities. If the Town in the future so requires, for all or any
portion of Town, that the utilities in such area place their lines underground, then Grantee shall in
a reasonable period of time place its existing and its future cable, wires, or other equipment in
such area underground without charge, expense or liability therefore to Town. The Grantee, may,
however, recover the cost in its charges to customers per applicable Federal regulation and if
allowed by law or regulation, may share in any amounts given to utilities for such
undergrounding.
(w) Pedestals and equipment. In any case where enclosures housing mini-hubs,
switching, or other such equipment are to be utilized along public rights-of-way and sidewalks,
such equipment must be vaulted or otherwise contained in an underground enclosure so as to
conform to existing Town and utility equipment installation requirements. A certificate of
approval from the Town shall be required for the location of any pedestal in a public fights-of-
way.
(x) Permits. Prior to construction or alteration of aerial or underground construction in
the public rights-of-way, the Grantee shall in each case file plans with the appropriate Town
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agencies, complete use agreements with the utility companies if necessary, obtain all construction
and right-of-way permits, and receive written approval of the Town before proceeding.
(y) Construction notice. Throughout any period of new construction or rebuild, Grantee
shall give the Town written notice, a reasonable time before the commencement of new
construction or rebuild, but in no event shall said notice be given less than sixty (60) business
days before such commencement. Grantee shall give the Town a quarterly schedule of
construction or rebuild areas and planned public rights-of-way disturbances.
(z) Interference with persons, improvements, public and private property and
utilities. The Grantee's system and facilities, including poles, lines, equipment and all
appurtenances, shall be located, erected and maintained so that such facilities shall:
(1) Not endanger or interfere with the health, safety or lives of persons.
(2)
Not interfere with any improvements the Town or State may deem proper to
make.
(3)
Not interfere with the free and proper use of public rights-of-way, alleys, bridges,
easements or other public rights-of-way, places or property, except to the
minimum extent possible during actual construction or repair.
(4)
Not interfere with the rights and reasonable convenience of private property
owners, except to the minimum extent possible during actual construction or
repair.
(5)
Not obstruct, hinder or interfere with any gas, electric, or telephone facilities or
other utilities located within the Town to the extent such other entities are
required not to interfere with cable facilities.
(6)
Not obstruct, hinder or interfere with any facilities or utilities owned and/or
operated by the Town.
(aa) Relocation of the system. Grantee shall, at its own cost and expense, protect,
support, disconnect, relocate or remove from the public rights-of-way any portion of the cable
television system when reasonably required to do so by Town due to public rights-of-way or
other public excavation, construction, repair, grading or regrading; traffic conditions; the
installation of sewers, drains, water pipes, power or signal lines, trackway or tracks; Town-owned
facilities; the vacation, construction or relocation of public rights-of-way or any other type of
structure; or other improvements by Town or another public agency or any other type of
improvement which Town reasonably deems necessary for the public health, safety or welfare.
Town may temporarily disconnect, remove or relocate any of Grantee's facilities which have not
been disconnected, removed or relocated within a reasonable period of time after a request from
Town, stating the date by which such action is required, and Grantee shall reimburse Town its
actual expense. Neither Town nor any agent, contractor or employee thereof shall be liable to
Grantee for any damages caused them or the cable television system due to any activities
described in the preceding two sentences.
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(bb) Restoration of property. Grantee shall restore at its sole cost and expense, within
ten (10) working days of completion of construction, operation, maintenance or repair, or such
additional time as specified by the Town, in accordance with Town ordinances, rules and
regulations, any portion of the public rights-of-way that is in any way disturbed by the
construction, operation, maintenance or repair of the cable television system to as good or better
condition than existed previously. In addition, Grantee shall, at its sole cost and expense, restore
and replace any other property, real or personal, disturbed, damaged or in any way injured by or
on account of Grantee or by its acts or omissions, to the same condition as such property was in
immediately prior to the disturbance, damage or injury. In the event that Grantee and its
contractors and subcontractors fail to make such repair within a reasonable time specified by
Town, Town shall be entitled to make repairs or have such repairs made and Grantee shall pay the
costs of Town for such repair.
(cc) Town and town utility property. Where any damages or alterations occur to the
property of the Town or its utilities during the construction due to the presence, negligence,
operation or maintenance of the cable television system, the sole cost of such repairs including all
services and materials will be billed against the Grantee and these charges shall be paid
immediately or the Town may foreclose on performance bonds, or invoke other appropriate
sanctions provided for in this Ordinance. Grantee shall immediately notify the Town if any Town
property or Town utilities is cut by the Grantee or its subcontractors.
(dd) Private property. Grantee shall be subject to all laws, ordinances or regulations
regarding private property in the course of constructing, installing, operating or maintaining the
cable television system in the Town. Grantee shall promptly repair or replace all private
property, both real and personal, damaged or destroyed as a result of the construction, installation,
operating or maintenance of the cable television system at its sole cost and expense.
(ee) Compensation for town property. If the right is granted, by lease, Franchise or
other manner, to use and occupy Town property, in addition to the public rights-of-way, for the
installation of cable television facilities, the compensation to be paid shall be fixed by the Town.
(ff) Cooperation with building movers. The Grantee shall, on the request of any person
holding a building moving permit issued by the Town, temporarily raise or lower its wire to
permit the moving of buildings. The expense of such temporary removal, raising or lowering of
wires shall be paid by the person requesting the same, and the Grantee shall have the authority to
require such payment in advance. The Grantee shall be given not less than fifteen (15) working
days' advance notice to arrange for such temporary wire changes.
(gg) Underground construction. For all underground construction in the public rights-
of-way, Grantee shall ensure that cable is buried at a depth of thirty-six inches (36") or greater in
the event of a conflict. Temporary drops shall be buried within sixty (60) days or in the case of a
problem obtaining an easement, within ninety (90) days of installation, weather permitting.
(hh) Tree trimming. No trimming on any part of trees in the public rights-of-way or on
Town property shall be done without securing a permit from the Town arborist.
(ii) Construction and installation manual. Grantee shall submit to the Town a manual
which sets forth the specifications, standards and procedures for construction and installation of
its cable television system. Said manual shall be consistent with the highest standards of the
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cable television industry and shall, at a minimum, establish procedures to ensure quality work and
provide for the safety and protection of residents and property. Said manual shall be incorporated
in the Franchise and made a part hereof.
(j j) Maps. Upon completion of the construction of the cable television system, the
Grantee shall submit to the Town a complete and accurate set of "as built" strand maps. Maps
shall be based on current State plane coordinates and shall be provided to the Town on disc in a
format compatible with the geographic information system utilized by the Town.
(kk) Requirements to use existing poles. Where poles already exist for use in serving
the Town and are available for use by the Grantee, but it does not make arrangements for such
use, the Town may require the Grantee to use such poles and structures if the public convenience
would be enhanced thereby and the terms of the use available to the Grantee are just and
reasonable.
(11) Removal of obsolete facilities/cooperation. When Grantee opens a trench, accesses
a conduit or boring, or is working on aerial locations, it shall remove all of its own cable
television system facilities which are no longer in use or which Grantee, in its sole discretion,
deems obsolete, from such locations.
(1) When Grantee opens a trench or access to borings, it shall notify all other
Grantee's and permittees in advance of such work, so that they may remove their
obsolete facilities from such locations. Grantee shall cooperate with such persons in such
activities.
(2) When Grantee receives notification from another Grantee or permittee that it
is opening a trench or access to borings, Grantee shall remove all of its obsolete facilities
from such location while they are open.
(mm) Vacation. If a public rights-of-way is vacated, eliminated, discontinued, or closed,
all rights of Grantee under this Ordinance to use same shall terminate and Grantee at its expense
shall immediately remove the cable television system from such public rights-of-way unless
Grantee obtains any necessary easements from the affected property owners to use the former
public rights-of-way.
(nn) Acquisition of rights-of-way. In acquiring or widening public rights-of-way, the
Town shall determine the minimum rights-of-way necessary to accommodate paved public rights-
of-way, pedestrian walkway, landscaping, traffic signals, drainage, water and sewer lines and
other governmental facilities.
(oo) Identification. Grantee shall identify its cable television system and cable drops (by
color code, stamping, engraving, tags, stickers, or other appropriate method selected by Grantee)
so as to distinguish Grantee's cables from that of all other cable operators, utilities, and service
providers in the authorized area.
(pp) Marking of underground construction. In underground construction areas, the
Grantee's facilities shall be identified with permanent markings or materials in conformance with
the local utility locator organization and Town regulations.
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(qq) Noncomplying work. Upon order of the Town, all work which does not comply
with the permit, the approved plans and specifications for the work, or the requirements of this
Ordinance, shall be removed.
(rr) Utility notification program. Grantee shall participate in and be a member of the
State's utility notification program, whether provided for by statute or otherwise.
(ss) Hazardous substances.
(1) Grantee shall comply with all applicable State and Federal laws, statutes,
regulations and orders concerning hazardous substances relating to Grantee's cable
television system in the public rights-of-way.
(2) Grantee agrees to forever indemnify the Town against any claims, costs, and
expenses, of any kind, whether direct or indirect, incurred by the Town arising out of a
release of hazardous substances caused by Grantee's cable television system in the public
rights-of-way.
(tt) Approval for poles. No poles shall be erected by the Grantee without prior approval
of the Town with regard to location, height, types and any other pertinent aspect. However, no
location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest
and such poles or structures shall be removed or modified by the Grantee at its own expense
whenever the Town determines that the public convenience would be enhanced thereby.
ARTICLE VII. SERVICES
Sec. 5.1A-27. Basic subscriber service.
(a) Programming. Concurrently with the activation of the cable television system in the
Town, the Grantee shall provide all services to subscribers as described herein.
(1) The system shall carry the broad categories of programming and services
listed in the Franchise. Should the Grantee desire to change the selection of programs or
services offered on any of its tiers, it shall maintain the mix and quality of services
provided over the system. Any such change in programs or services offered shall comply
with the conditions of the FCC regulations. The Grantee shall use its best efforts to
ensure diversity of programming.
(2) Basic Service Tier. A basic service tier shall be offered to subscribers
throughout the term of this Ordinance and the Franchise.
(3) Access. The Grantee shall provide and maintain the following types of access
channels for non-commercial use, the number of which shall be specified in the
Franchise.
(A) Government Access Channel(s) which shall be a specifically
designated channel(s) for local governmental use and shall be managed,
scheduled and programmed exclusively by the Town.
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(B) Educational Access Channel(s) which shall be a specifically
designated channel(s) for use by local public and private school authorities, and
shall be managed, scheduled and programmed exclusively by them.
(C) Public Access Channel(s) which will be a specifically designated
channel(s) available on a first-come, first-served, non-discriminatory basis.
(4) Leased Access. The Grantee shall make available leased access channels as
required by the Cable Act.
(5) Access Services. The Grantee shall fully provide, at a minimum, services,
facilities and equipment for public, educational, and government access as indicated in
the Franchise.
(b) Institutional Network. If the Town finds an institutional network would meet the
cable television needs of the Town, the Grantee shall construct, install, operate and maintain or
otherwise provide an institutional network or service, in addition to the residential subscriber
network as specified in the Franchise.
Sec. 5.1A-28. Virginia Public Telecommunications Council.
A Grantee shall also comply with all current and future requirements of the Virginia
Public Telecommunications Council.
Sec. 5.1A-29. Local origination programming.
A Grantee shall provide the local origination programming as specified in its Franchise
Agreement.
Sec. 5.1A-30. Studio facilities.
A Grantee shall provide the studio facilities and equipment as specified in its Franchise
Agreement.
ARTICLE VIII. DESIGN AND CONSTRUCTION
STANDARDS
Sec. 5.1A-31. Channel capacity.
A Grantee shall construct a cable television system that shall have not less than one
hundred (100) video channels or an equivalent amount of band width capacity.
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Sec. 5.1A-32. Overhead and underground construction.
Construction of trunk, feeder and drop cable may be constructed 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 above ground
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 Grantee. To the extent
other non Town-owned utilities are entitled to reimbursement for movement and allowed by law
or regulation, Grantee shall be entitled to such reimbursement.
Sec. 5.1A-33. Two-way capacity.
The Grantee shall install a cable television system with a technical capability for two-way
communications.
Sec. 5.1A-34. Emergency requirements.
Grantee shall comply with the requirements of the Federal emergency alert system as
specified by the FCC (47 CFR Part 11.1, et seq.). Grantee shall provide the Town with a Local
Alert System ("LAS") which shall allow the Town to initiate audio and video crawl emergency
messages to cable subscribers from any touch-tone phone with an access code. Persons to be
provided with access codes shall be selected by the Town. The Town requires that its
government access channel serve as the emergency video feed. Town shall consult with the
Grantee when developing policies to govern the activation of the LAS. At such time as a video
crawl on all channels for emergency messages is available on the system, it shall be made
available to the Town for emergency messages which can be inserted by the Town from the Town
Government Center.
Sec. 5.1A-35. Construction requirements and safety standards.
(a) Methods of construction, installation and maintenance of the Town's cable television
system shall comply with the latest National Electric Code to the extent that such Code is
consistent with local law affecting the construction, installation and maintenance of electric
supply and communications lines.
(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 Public rights-of-way, N.W., Washington, D.C.
20006.
(c) Installation and physical dimensions of any tower construction for use in any cable
television system shall comply with all appropriate Federal Aviation Agency regulations.
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(d) The construction, installation, operation, maintenance, and/or removal of the cable
television system shall meet all of the following safety, construction, and technical specifications
and codes and standards, as applicable:
Occupational Safety and Health Administration
Regulations (OSHA)
National Electrical Safety Code (NESC)
Appropriate Manual of Construction Procedures and Standards
as determined by the Town
All Federal, State and Municipal Construction Requirements
All building, subdivision, and zoning codes or regulations, and all land use
restrictions as the same exist or may be amended hereafter
Any and all State and Federal law or regulation regarding the transportation or
disposal of hazardous materials.
Sec. 5.1A-36. Technical standards.
(a) The Grantee shall comply with all existing and future requirements of the FCC or its
successor's governing technical standards.
(b) Test points. System monitor test points shall be established at or near the output of
the last amplifier in the longest feeder line, at or near trunk line extremities. Such periodic tests
shall be made at the test points as shall be required by the FCC.
(c) FCC tests. A copy of any performance test reports required by the FCC shall be
submitted to the Town within sixty (60) days of completion.
(d) Town required tests. Whenever there have been multiple, similar complaints made
or when there exists other reasonable evidence, which, in the judgment of the Town, casts doubt
on the reliability or quality of the Grantee's system, the Town shall have the right and authority to
compel the Grantee to test, analyze, and report on the performance of its system. The Town may
require additional tests, full or partial repeat tests, different test procedures, or tests involving a
specific subscriber's terminal. Reports on such tests shall be delivered to the Town no later than
fourteen (14) days after the Town formally notifies the Grantee and shall include the following
information: the nature of the complaints which precipitated the special tests; what system
component was tested; the equipment used, and procedures employed in said testing; the results
of such tests; and methods by which said complaints were resolved. Said tests and analyses shall
be supervised by a qualified technician not on the permanent staff of the Grantee, who shall sign
all records of the special tests and forward same to the Town with a report interpreting the results
of the tests and recommending what actions should be taken to resolve the complaints or system
deficiencies. All such tests shall be at the expense of the Grantee.
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ARTICLE IX. OPERATIONS,
ACCOUNTING RECORDS, AND REPORTS
Sec. 5.1A-37. Books and records.
(a) The Grantee 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 Town, including expenses attributed to the Grantee 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 Ordinance.
(b) Review. Grantee shall permit any duly authorized representative of the Town to
examine and copy or transcribe any and all maps and other records kept or maintained by Grantee
or under its control concerning the operations, affairs, transactions or property of Grantee. If any
of such maps or records are not kept in the Town, or upon reasonable request made available in
the Town, and if the Town shall determine that an examination of such maps or records is
necessary or appropriate to the performance of any of their duties, then all travel and maintenance
expenses necessarily incurred in making such examination shall be paid by Grantee. 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 Ordinance.
(c) The Grantee shall maintain a file of records open to public inspection in accordance
with applicable FCC rules and regulations.
Sec. 5.1A-38. Reports.
(a) Annual report. The Grantee shall submit written reports to the Town as specified
below:
(1) An annual summary of the previous year's activities and development of the
cable television system, including but not limited to services begun or dropped and
subscribers gained or lost;
(2) An annual summary of complaints, identifying both number and nature of the
complaints received and an explanation of the disposition;
(3) On request for transfer or renewal, 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 Grantee sixty (60) days prior to the deadline for submittal of the written
report;
(4) A copy of Grantee's annual report;
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(5) A list of all stockholders with a ten percent (10%) 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 Grantee and, if applicable, a list of
all officers of the parent corporation of the Grantee; and
(7) Such other information as the Town Manager or the Town Council may
reasonably direct.
(b) Regulatory communications. Upon request of the Town, any or all reports required
by the Federal Communications Commission (FCC) including, but not limited to any annual
proof of performance tests and results, Equal Employment Opportunity (EEO) reports, required
financial information, and all petitions, applications and communications of all types submitted
by Grantee to the FCC, the Security and Exchange Commission (SEC), or any other Federal or
State regulatory commission or agency, having jurisdiction over any matter affecting operation of
Grantee's system shall be submitted to the Town by delivery to the Town Manager's office.
(c) Construction reports. Construction reports shall be sent to the Town quarterly for
initial or rebuild construction, and monthly thereafter for any line extension construction
undertaken.
(d) Proof of performance tests. Proof of performance test results shall be supplied to
the Town as required in this Ordinance.
(e) Tests required by town. Technical tests required by Town as specified in this
Ordinance and the Franchise shall be submitted within thirty (30) days of notification.
(f) Change in service. A report on any change in programming or service shall be
provided to the Town thirty (30) days prior to implementation.
(g) Grantee rules. The Grantee's schedule of charges, contract or application forms of
regular subscriber service policy regarding the processing of subscriber complaints, delinquent
subscriber disconnect and reconnect procedures and any other terms and conditions adopted as
the Grantee's policy in connection with its subscribers shall be filed with the Town prior to their
becoming effective. Such rules, regulations, terms and conditions shall not be in conflict with the
provisions hereof or applicable State and Federal laws, rules or regulations.
(h) Proof of bonds and insurance. Grantee shall submit to the Town the required
performance bond, or a certified copy thereof, and written evidence of payment of required
premium, and all policies of insurance required by this Ordinance, the Franchise, or certified
copies thereof, and written notice of payment of required premium.
(i) Additional reports. The Grantee shall prepare and furnish to the Town at the times
and in the form prescribed, such additional reports with respect to its operation, affairs,
transactions or property, as may be reasonably necessary to the performance of any of the rights,
functions or duties of the Town in connection with this Ordinance or the Franchise.
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Sec. 5.1A-39. Service requirements.
(a) A Grantee shall comply with all technical standards and specifications established by
the FCC throughout the entire period of its Franchise.
(b) A Grantee shall render efficient service, reliable operation twenty-four (24) hours per
day, make repairs promptly and interrupt the service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, will be preceded by notice and shall occur during
periods of minimum use of the system.
(c) A Grantee shall maintain an 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 twenty-four (24) hour basis.
(d) Cable television basic service shall be made available to substantially all individual
dwellings, residences, institutions, organizations and all other entities within the limits of the
Town, in accordance with the provisions of this Ordinance, the Franchise, and all laws governing
the rights of privacy and passage.
(e) Installations and service fees shall be equal for all basic service subscribers.
Installation or subscriber use of cable television service which involves the retransmission of the
cable signal to multiple reception points via a privately-owned closed circuit television
distribution system shall be negotiated separately by the Grantee and the subscriber.
(f) Each class of subscriber service shall be offered cable television service on a uniform,
nondiscriminatory basis within said class by a subscriber except as such removal would interfere
with the provision of cable services to another subscriber in the same structure.
(g) The Grantee shall have a local, publicly listed telephone. The Grantee shall maintain a
twenty-four (24) hour answering device or operator each day of the year in order to receive
subscriber complaints. A record shall be kept by the Grantee listing each and every subscriber
complaint received. Said record shall be available for inspection upon request at the office of the
Grantee and shall be kept for one (1) year. A written summary shall be given to the Town
annually.
(h) The Grantee shall maintain a repair and trouble-shooting force capable of responding
to subscriber complaints and/or requests for cable system repairs within twenty-four (24) hours as
a maximum after the receipt of the complaint and/or request.
(1) The Grantee shall maintain a record on the disposition of all complaints
and/or requests for repairs.
(2) Said record shall be available for inspection upon reasonable notice.
(i) The Grantee shall not deny nor delay service, deny or delay access, or otherwise
discriminate against subscribers, channel users or general citizens on any basis whatsoever.
(1) The Grantee shall comply with the Equal Employment Opportunity
requirements of the State of Virginia and the Federal government, all laws, regulations
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and executive orders pertaining to equal employment opportunity and affirmative action
programs and nondiscrimination.
(2) The Grantee shall comply with all provisions of the Equal Employment
Opportunity Act as the same may be from time to time amended.
(j) Any subscriber who has a complaint regarding the quality of cable television service,
equipment malfunctions, billings or any other matter which remains unresolved after it has been
brought to the Grantee's attention, may file a complaint with the Town who shall have the
primary responsibility for the continuing administration of complaint procedures hereunder.
(k) Upon filing of such a complaint, the Town shall notify the Grantee and make an
investigation to determine whether or not there is reason to credit the allegations. If it is
determined after such investigation that there is reason to credit the allegations of the
complainant, the Town shall so notify the Grantee and the complainant, and shall promptly
endeavor to resolve the matter by conciliation persuasion.
(1) Grantee shall provide any service to all subscribers at the time of installation and upon
request by any customer thereafter, the Grantee shall provide the following subscription
information.
(1) A description of the cable services provided by the Grantee, accompanied by a
listing of the charges for each such service, either alone or in combination;
(2) A listing of all rates, terms and conditions for each cable service or tier of
cable service, both alone and in combination, and all other charges, such as for returned
checks and for relocating cable outlets and all discounts such as those for senior citizens
and heating impaired;
(3) Instructions on how to use other communications devices which may be used
in conjunction with the system;
(4) A description of the Grantee's billing and collection procedures;
(5) The procedure for the resolution of billing disputes, including the telephone
number of the office subscribers may call with regard to billing disputes;
(6) Description of the Grantee's policies concerning credits for outages and
reception problems, consistent with these consumer protection standards;
(7) An explanation of the procedures and charges, if any, for upgrading,
downgrading or disconnecting services, consistent with these consumer protection
standards;
(8) The required time periods for the completion of installation requests,
consistent with these consumer protection standards, and an indication of the penalties for
failure to complete installation within such time periods;
(A) The complaint resolution process;
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(B) The procedures by which the subscriber will be notified of any rate
increase;
(C) The local numbers for the Grantee's subscriber service telephone
system and location of the local customer service center; and
(D) A description of significant rights accorded to the subscriber pursuant
to applicable law.
(m) The Grantee will provide subscribers with a channel line-up card for all cable
services, at the time of installation and upon request thereafter.
(n) Under normal operating conditions, the standards in this section shall be met no less
than ninety-five percent (95%) of the time as measured on an annual basis. The term normal
operating conditions means those service conditions which are within the control of the Grantee.
Those conditions which are not within the control of the Grantee include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network outages, and severe or
unusual weather conditions. Those conditions which are ordinarily within the control of the
Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
(o) Once a request for cable service is received, the Grantee shall either set a specific
appointment time or specify a four (4) hour time block during normal business hours, as
requested by the subscriber or potential subscriber, during which the Grantee's work crew shall
install the new equipment to receive service. The term normal business hours means those hours
during which most similar businesses in the community are open to serve customers. The Grantee
may schedule installation activities outside of normal business hours for the express convenience
of the subscriber.
(p) Unless a later date is requested by a potential subscriber, the Grantee shall complete
installation of service for any new subscriber within seven (7) business days after any such
request is received, where the installation is located up to one hundred fifty feet (150') from the
existing distribution system.
(q) The telephone system shall have, at a minimum, enough incoming lines and adequate
staff to process incoming calls such that telephone answer time, including wait time, shall not
exceed thirty (30) seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed thirty (30) seconds. Subscribers shall receive a busy signal less
than three percent (3%) of the time.
(r) The Grantee shall abide by the following format requirements on subscribers bills.
(1) The bill shall be designed in such a way as to present the information
contained therein clearly and comprehensibly to subscribers.
(2) The bill shall contain itemized charges for each category of service and
equipment and any installation of equipment or facilities and monthly use thereof
(together, "equipment") for which a charge is imposed (including late charges, if any), an
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explicit due date, the name and address of the Grantee and telephone number for the
Grantee's office responsible for inquiries and billing, the telephone number specified by
the Town for the resolution of billing disputes, and the FCC Community Unit Identifier
Number. The bill shall state the billing period, amount of current billing and appropriate
credits or past due balances, if any.
(3) The Grantee shall not charge a potential subscriber or subscriber for any
service or equipment that the subscriber has not affirmatively requested by name. A
subscriber's failure to refuse a cable operator's proposal to provide such service or
equipment shall not be deemed to be an affirmative request for such service or
equipment.
(s) Grantee shall provide all individual, residential subscribers with the option of paying
for cable service by (i) cash or (ii) check.
(t) Following is the procedure Grantee shall abide by for collecting late bills.
(1) No bill shall be due less than twenty-one (21) days from the date of the due
date of the bill by the Grantee to the subscriber.
(2) A bill shall not be considered delinquent until at least thirty (30) days have
elapsed from the due date of the bill to the subscriber and payment has not been received
by the Grantee, provided that no bill shall be mailed more than twenty-one (21) days
prior to the date services covered by such bill commence, except in cases where a
subscriber requests advance billing. Late fees will not exceed Grantee's average cost of
collecting delinquent accounts.
(3) The Grantee shall not physically or electronically discontinue service for
nonpayment of bills rendered for service until: (i) the subscriber is delinquent in payment
for service; and (ii) at least five (5) days have elapsed after a separate written notice of
impending discontinuance has been served personally upon a subscriber; or (iii) at least
ten (10) days have elapsed after mailing to the subscriber a separate written notice of
impending discontinuance (for which postage is paid by the Grantee), addressed to such
person at the premises where the subscriber requests billing; or (iv) at least five (5) days
have elapsed after a subscriber has either signed for or refused a certified letter (postage
to be paid by the Grantee) containing a separate written notice of impending
discontinuance addressed to such person at the premises where the subscriber requests
billing. Notice of service discontinuance must clearly state the amount in arrears, the
total amount required to be paid to avoid discontinuance of service, reconnection charges
if applicable, and the date by which such payment must be made.
(u) Following is the procedure the Grantee shall abide by in resolving billing disputes.
(1) The billing dispute resolution procedure shall be initiated once a subscriber
contacts the Grantee's department which handles billing questions or the Town, orally or
in writing, so long as such contact occurs within thirty (30) days from the date of receipt
of the bill by the subscriber. If the subscriber contacts the Town, the Town shall notify
the Grantee, by mail, by telephone or by electronic means, that the dispute resolution
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procedure has been initiated and the Grantee shall then contact the subscriber to discuss
the dispute.
(2) The subscriber shall not be required to pay the disputed portion of the bill until
the dispute is resolved. The Grantee shall not apply finance charges, enforce delinquency
or termination notices, or initiate collection procedures for the disputed portion of the bill
pending resolution of the dispute.
(3) The Grantee shall promptly undertake whatever review is necessary to resolve
the dispute, and shall notify the subscriber of the results of the review as soon as it is
completed, but in no case later than twenty (20) business days after receipt from the
subscriber of the billing dispute, problem or complaint notification.
(4) The Grantee shall notify the subscriber of its proposed resolution of the billing
dispute.
(v) Prior to referring a delinquent account to the collection agency, the Grantee shall
follow the procedure listed below.
(1) If the billing dispute resolution procedures have not been initiated, the
delinquent account may be referred to a private collection agency for appropriate action
no sooner than thirty (30) business days after it becomes delinquent.
(2) If the billing dispute resolution procedures have been initiated, the delinquent
account shall not be referred to a collection agency prior to ten (10) business days after
the conclusion of those procedures, including any appeal to the Town.
(w) The Grantee shall comply with all rules and regulations promulgated by the FCC
pursuant to Sections 623 and 624A of the Cable Act (47 U.S.C. §§ 543 and 544a).
(x) The Grantee shall exercise its good faith to limit any scheduled interruption of any
cable service for any purpose to periods of minimum use. Except in emergencies or incidents
requiring immediate action, the Grantee shall provide the Town and all affected subscribers with
prior notice of scheduled service interruptions, if such interruptions will last longer than one and
one-half (1-1/2) hours.
(y) Following are time periods by which outages must be corrected and repairs must be
made by the Grantee.
(1) The Grantee shall maintain sufficient repair and maintenance crews so as to be
able to correct or repair any reception problem or other service problem of either picture,
or sound quality, including any outage of sound and/or picture, on any channel except for
a problem caused by an intentional, wrongful act of the subscriber or by the subscriber's
own equipment which was not supplied by the Grantee, promptly and in no event later
than twenty-four (24) hours after the Grantee either receives a request for repair service
or the Grantee learns of it. For purposes of this section, "reception problem" shall
constitute reception that an affected subscriber reasonably determines is unsatisfactory,
unless the Grantee can demonstrate that the signals transmitted to such subscriber are in
compliance with the FCC's technical signal quality standards.
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(2) The Grantee shall maintain, at all times, an adequate repair and service force in
order to satisfy its obligations above, and in cases where it is necessary to enter upon a
subscriber's premises to correct any reception problem or other service problem, the
Grantee shall either set a specific appointment time or specify a four (4) hour time block
during normal business hours, as requested by the subscriber or potential subscriber,
during which the Grantee's work crew shall work on the service problem. The Grantee
may schedule service calls outside of normal business hours for the express convenience
of the subscriber, provided that the Grantee's customer service representatives shall at all
times endeavor to be aware of service or other problems in adjacent areas which may
obviate the need to enter a subscriber's premises.
(3) In no event shall the Grantee cancel any necessary scheduled service call after
the close of the business on the business day prior to the scheduled appointment. If the
Grantee needs to cancel a scheduled appointment, it must contact the subscriber and
reschedule at a time convenient for the subscriber.
(z) The Grantee's failure to correct outages or to make repairs within the stated time
periods shall be excused in the following circumstances:
(1) If the Grantee could not obtain access to the subscriber's premises; or
(2) If the Town, acting reasonably, agrees with the Grantee that correcting such
outages or making such repairs was not reasonably possible within the allotted time
period.
(aa) Except for negligence by the subscriber, the Grantee shall not impose any fee or
charge any subscriber for any service call to his or her premises to perform any repair or
maintenance work on Grantee's equipment.
(bb) For new installations, excluding locations where all utilities are underground, if a
subscriber requests underground cable service, Grantee may charge the subscriber the differential
between the cost of aerial and underground installation of the drop to the subscriber. This
provision shall not apply where undergrounding is required by Town ordinance or policy.
(cc) The Grantee shall provide all service calls throughout the Franchise area on a
nondiscriminatory basis.
(dd) The Grantee shall keep records capable of showing all requests for repair service and
information on outage correction (to the extent available with respect to each of the following
types of information), which shall show, at a minimum, the name and address of the affected
subscriber, the date and the approximate time of request, the date and approximate time the
Grantee responds, the date and approximate time service is restored, the type and the probable
cause of the problem, and the names of the Grantee employees who took the corrective action(s).
Such records shall also describe the corrective action taken, and, in the case of outages, shall
estimate the number of subscribers affected. For the purposes of this section, "time" shall mean
the time of request or appointment period, as applicable. Records required herein may be
destroyed two (2) years after such information was collected, unless the Town authorizes the
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Grantee, in writing, to destroy any information required by this section, prior to the expiration of
such two (2) year period.
(ee) For the purposes of this section, "complaint" shall mean any written communication
by a subscriber or potential subscriber or oral communication by a subscriber or potential
subscriber reduced to writing, including to a computer form, expressing dissatisfaction with any
non-programming aspect of the Grantee's business or operation of the system.
(fl) Except where another time period is required by any other provision of this section,
the Grantee shall make its good faith to resolve, as soon as practicable and in no event later than
seven (7) business days, all complaints after they are received by the Grantee.
(gg) The Grantee shall provide the following notices.
(1) The Grantee shall provide notice, in writing, to the Town and all subscribers of
any change in any fee, charge, deposit, term or condition in accordance with FCC rules.
(2) The Grantee shall provide notice, in writing, to the Town and all subscribers of
any change in any channel assignment or in any service provided over any such channel
in accordance with FCC rules.
(3) As described in this section, the Grantee may terminate service to any
subscriber whose bill has not been paid after it becomes delinquent, so long as the
Grantee gives proper notice to the subscriber.
(hh) The Grantee shall not refuse to serve a former subscriber whose service was
terminated, so long as all past bills and late charges have been paid in full, but may require a
deposit.
(ii) If disconnection occurs at the subscriber's written or oral request, then, for billing
purposes, it shall be deemed to have occurred three (3) business days after the Grantee receives
the request for disconnection at Grantee's business offices unless (i) it in fact occurs earlier or (ii)
the subscriber requests a longer period.
(j j) The Grantee shall either set a specific appointment time or specify a four (4) hour
time period during normal business hours, during which its work crew shall visit the subscriber's
premises to disconnect service and to remove any equipment. The Grantee may schedule such
service outside normal business hours for the express convenience of the subscriber.
(kk) The Grantee shall ensure that the subscriber's premises are restored to their original
condition if damaged by the Grantee's employees or agents in any respect in connection with the
installation, repair or disconnection of cable service.
(11) Grantee shall provide subscribers with credits, commensurate with the period of time
a subscriber experiences a outage of one channel or more, for system-wide or partial system
outages in all cases where the Grantee is aware of an outage and which subscribers are affected.
Grantee, upon subscriber request, shall credit the subscribers account for a pro-rata share of the
monthly bill commensurate with the period of time a subscriber experiences an outage of one
channel or more, beyond the first four (4) hours.
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(mm) The Grantee shall not charge any fee for disconnection
(nn) In the event applicable law permits, at any time during the term of the Franchise, the
Town requires the Grantee to retroactively decrease or "rollback" rates, fees or charges for any
service provided pursuant to the Franchise, the Grantee shall automatically provide a credit on
each subscriber's bill affected by such decrease or rollback.
(oo) Grantee shall continue to comply with the NCTA's On-Time Customer Service
Guarantee. The guarantee "promises on-time service calls or the customer receives twenty dollars
($20.00), and on-time installation calls or the customer receives a free installation."
(pp) If a subscriber's converter box or other cable-related Grantee owned customer
premises equipment is destroyed by fire, flood, tornado, building collapse or otherwise such that
the premises are not habitable, Grantee shall refund any deposit for such equipment and shall not
charge the subscriber for replacement equipment but may seek reimbursement from applicable
insurance policies.
(qq) Grantee's bills, advertising and communications to its current or potential
subscribers shall be truthful and shall not contain any false or misleading statement. For the
purposes of the preceding, a statement is false or misleading if it contains an untrue statement of
any material fact or omits to state a material fact necessary in order to make the statements made,
in the light of the circumstances under which they were made, not misleading.
(rr) Grantee shall provide customer service reports to the Town quarterly as follows: The
reports shall be in form and substance acceptable to the Town, showing on a consistent basis,
fairly applied the matters set forth herein so as to measure Grantee's compliance with the
standards of the referenced sections and such other matters as the Town shall from time to time
specify. Such reports shall show Grantee's performance excluding periods of abnormal operating
conditions, and if Grantee contends any such conditions occurred during the period in question, it
shall also describe the nature and extent of conditions and show Grantee's performance both
including and excluding the time periods Grantee contends such conditions were in effect.
(ss) The Town reserves the right by Ordinance to alter or amend the customer service and
consumer protection matters set forth in this section, including adopting ordinances stricter than
or covering items not presently set forth in this section. The Town agrees to meet with Grantee
on the matters in question prior to taking such action, and to provide Grantee with at least forty-
five (45) days prior notice of such action.
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ARTICLE X. RATES; RATE REGULATION; COMPLAINTS
Sec. 5.1A-40. Rates.
(a) Filing and publication of rates, rules and regulations.
Charges to subscribers and users shall be uniform throughout the Franchise area with a
written schedule of fees for all services offered and available from the Grantee upon request. A
Grantee shall publish and file with the Town Manager 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 combination of services, together with all roles, 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 may be reviewed by the Town Manager.
(b) Discriminatory or preferential practices prohibited.
The Grantee shall not, in its rates or charges, or in making available the services of
facilities of its system, or in its roles or regulations, or in any other respect, make or grant a
preference or advantage to any subscriber or potential subscriber 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 disadvantage.
This provision shall not be deemed to prohibit promotional campaigns to stimulate
subscriptions to the cable television system or other legitimate uses thereof. Notwithstanding the
aforementioned, this provision shall not prohibit the Grantee'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.
(c) Disconnection.
No disconnection fee shall be charged to a subscriber. Customer-requested disconnection
shall be made as soon as practicable and in no case shall billing continue longer than three (3)
business days following written notice to the Grantee of same by subscriber. The Grantee shall
not enter into any agreement with a subscriber which imposes any charge other than past due
balances and unreturned equipment charges following disconnection of service, except for
reconnection and subsequent monthly or periodic charges, and those charges shall be no greater
than charges for new customers, except Grantee may require a deposit. This section shall not
prevent the Grantee from refusing service to any person because the Grantee's prior accounts with
that person remain due and owing.
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Sec. 5.1A-41. Rate Regulation.
(a) Compliance with FCC regulations.
In regulating rates for basic cable service and associated equipment, installation and
services as allowed by Federal law, the Town shall be governed by and shall comply with all
controlling FCC regulations and State and Federal statutes, notwithstanding any different or
inconsistent provisions in the Franchise.
(b) Additional information.
At any point during the review process, the Town, at its discretion, may (i) seek
additional written comments; (ii) require the Grantee to produce additional information, including
but not limited to certified financial statements, and all worksheets, working papers, ledgers,
receipts, and all other financial and accounting records underlying the Grantee's submission, the
calculations used in the submission, and the Grantee's finances and accounts necessary to verify
the accuracy of the submission; (iii) require the Grantee to allow the Town and its agents to audit
and review the Grantee's books and accounts including but not limited to the information
described above; and (iv) obtain relevant information from other sources.
(c) Determination of rates.
(1) Final rate determinations will be made by the Town Council pursuant to FCC
regulations.
(d) Refunds to subscribers.
The Town may order a Grantee to refund or rebate to subscribers in accordance with FCC
regulations.
Sec. 5.1A-42. Complaints.
(a) Complaints by any subscriber may be filed with the Grantee in writing or delivered to
the Grantee orally in person or by telephone.
(b) Any complaints received from subscribers shall be investigated by the Grantee and
acted upon as soon as possible, but in no event later than the next business day.
(c) The Grantee shall keep a maintenance service log that will indicate the nature of each
complaint, the name of the employee of the Grantee 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 Grantee to remedy the complaint. This log shall be made
available for inspection upon request by the Town Manager.
(d) Notwithstanding the above, upon request, the Grantee shall advise the Town Manager
in writing 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.
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ARTICLE XI. FINANCIAL, INSURANCE BONDS
PROVISIONS
Sec. 5.1A-43. Franchise fee.
(a) As compensation for any Franchise granted pursuant to this Ordinance in
consideration of permission to use the public rights-of-way and public way of the Town for the
construction, operation, maintenance and reconstruction of the cable television system, the
Grantee shall pay to the Town an amount equal to five percent (5%) of the Grantee's gross annual
revenues from all sources attributable to the operations of the Franchise within the Town or the
maximum allowed by law, whichever is higher.
(b) Franchise fee in addition to other tax or payments. This payment shall be in
addition to any other tax or payment owed to the Town or other taxing jurisdiction by the
Grantee. Payment of the Franchise fee made by Grantee to the Town shall not be considered in
the nature of a tax, but shall be in addition to any and all taxes which are now or may be required
hereafter to be paid by any Federal, State, or Local law.
(c) 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
payment shall be due and payable no later than thirty (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 that
the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed
as release of any claim for additional amounts payable to the Town. All 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 Grantee of local taxes,
including, but not limited to property taxes.
(f) Failure to make required payment. In the event that any Franchise payment or
recomputed amount is not made on or before the dates specified herein, Grantee shall pay as
additional compensation an interest charge, computed from such due date, at the annual rate equal
to the commercial prime interest rate of the Town's primary depository bank during the period
that such unpaid amount is owed.
(g) The Town right to inspection. The Town shall have the right to inspect the
Grantee's income records and the right to audit and to recompute any amounts determined to be
payable under this Ordinance. Any additional amount due to the Town as a result of the audit
shall be paid within thirty (30) days following written notice to the Grantee by the Town which
notice shall include a copy of the audit report, and if such sum shall exceed five percent (5%) of
the total Franchise fee which the audit determines should have been paid for any calendar year,
the Grantee shall pay Town' s cost of auditing that calendar year as well.
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Sec. 5.1A-44. Liability, indemnification and bonding.
(a) Upon acceptance of any Franchise under this Ordinance, the Grantee 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 Ordinance, except
due to negligence of the Town.
(b) The Grantee shall provide and pay for any legal defense of the Town with regard to
all actions mentioned above.
(c) The Grantee shall maintain, throughout the term of its Franchise, liability insurance in
companies acceptable to the Town sufficient to cover such indemnification and naming as insured
the Town and the Grantee with minimum limits of:
(1) $1,000,000 for property damage per occurrence;
(2) $2,000,000 for property damage aggregate;
(3) $3,000,000 for personal bodily injury or death to any one person; and
(4) $5,000,000 bodily injury or death aggregate per single accident or occurrence.
(d) Policy inclusions. Such general liability insurance must include coverage for all of
the following: comprehensive form, premises-operations, explosion and collapse hazard,
underground hazard, products/completed operations hazard, contractual insurance, broad form
property damage, and personal injury.
(e) Automobile liability insurance. The Grantee shall maintain, and by its acceptance
of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of
the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the
minimum amount of:
(1) $1,000,000 for bodily injury and consequent death per occurrence;
(2) $1,000,000 for bodily injury and consequent death to any one person; and
(3) $500,000 for property damage per occurrence.
(f) Worker's compensation and employer's liability insurance. The Grantee shall
maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will
maintain throughout the term of the Franchise, Worker's Compensation and employer's liability,
valid in the State, in the minimum amount of:
(1) Statutory limit for Worker's Compensation; and
(2) $100,000 for Employer's Liability.
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(g) No limitation on liability. None of the provisions of this Ordinance or any insurance
policy required herein, or any damages recovered by the Town hereunder, shall be construed to
excuse the faithful performance by or limit the liability of Grantee under this Ordinance or the
Franchise for damages either to the limits of such policies or otherwise.
(h) Filing. Any insurance policy obtained by the Grantee in compliance with this section
shall be filed and maintained with the Town during the term of a Franchise, and from time to time
the Town may require.
(i) No liability limit. Neither the provisions of this section or any damages recovered by
the Town hereunder, shall be construed to nor limit the liability of the Grantee for damages under
any Franchise issued hereunder.
(j) Endorsement. All insurance policies maintained pursuant to this Ordinance or the
Franchise shall contain the following, or a comparable, endorsement:
"It is hereby understood and agreed that this insurance policy may not be
modified or canceled by the insurance company nor the intention not to
renew be stated by the insurance company until thirty (30) days after
receipt by the Town Manager, by registered mail, of a written notice of
such intention to cancel or not to renew."
(k) Hold harmless clause. All contractual liability insurance policies maintained
pursuant to this Ordinance or the Franchise shall include the provision of the following hold
harmless clause:
"The Grantee agrees to indemnify, save harmless and defend the Town, its
agents, servants, and employees, and each of them against and hold it and
them harmless from any and all lawsuits, claims, demands, liabilities,
losses and expenses, including court costs and reasonable attorney's fees
for or on account of any injury to any person, or any death at any time
resulting from such injury, or any damage to any property, which may arise
or which may be alleged to have arisen out of or in connection with the
work covered by the Franchise and performed or caused to be performed,
except where due to the willful negligence of the Town, its agents, and
employees."
(1) State institution. All insurance policies provided under the provisions of this
Ordinance or the Franchise shall be written by companies authorized to do business in the State
and approved by the State.
(m) Named insured. The Town will be named as an additional insured on all general
liability policies issued to the Grantee.
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(n) Indemnification. To the fullest extent permitted by law, Grantee shall, at its sole cost
and expense, fully indemnify, defend and hold harmless the Town, its officers, public officials,
boards and commissions, agents, and employees from and against any and all lawsuits, claims,
(including without limitation worker's compensation claims against the Town or others), causes
of action, actions, liability, and judgements for injury or damages (including but not limited
expenses for reasonable legal fees and disbursements assumed by the Town in connection
therewith):
(1) To persons or property, in any way arising out of or through the acts or
omissions of Grantee, its subcontractors, agents or employees, to which Grantee's
negligence shall in any way contribute, and regardless of whether the Town's willful
negligence or the negligence of any other party shall have contributed to such claim,
cause of action, judgement, injury, or damage.
(2) Arising out of any claim for invasion of the right of privacy, for defamation of
any person, firm or corporation, or the violation or infringement of any copyright,
trademark, trade name, service mark or patent, or any other right of any person, firm or
corporation.
(3) Arising out of Grantee's failure to comply with the provisions of any Federal,
State, or local statute, ordinances or regulation applicable to Grantee in its business
hereunder.
(o) The foregoing indemnity is conditioned upon the following:
The Town shall give Grantee notice of any claim or the commencement of
any action, suit or other proceeding covered by the provisions of this
section. Nothing herein shall be deemed to prevent the Town from
cooperating with the Grantee and participating in the defense of any
litigation by its own counsel at its own costs and expense. No recovery by
the Town of any sum by reason of the liquidated damages required by the
Franchise shall be subject to litigation by the Grantee, except that any sum
so received by the Town shall be deducted from any recovery which the
Town might have against the Grantee under the terms of this section.
Sec. 5.1A-45. Security fund.
Prior to the execution of a Franchise, a Grantee shall deposit $15,000 in an escrow
account with the Town Director of Finance to be held by the Town and invested in accordance to
subsection 2-84 (b) of the Town Code, throughout the initial and any subsequent term of a
Franchise. This fund will provide cash as security for the faithful performance by the Grantee of
the provisions of this Ordinance and of its Franchise relating to construction and compliance with
all order, permits and directions of any department of the Town having jurisdiction over its acts
or default. Within thirty (30) days after notice to it that any amount has been withdrawn from the
security fund deposit as provided herein, the Grantee shall deposit in such account a sum of
money equal to the amount withdrawn.
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Sec. 5.1A-46. Bonds.
(a) Within thirty (30) days of execution of a Franchise, a Franchisee shall provide and
maintain, 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
$250,000.00, payable to the Town.
(b) The bonds, performance guarantees and insurance policies called for herein shall also
indemnify the Town and other interested parties against any destruction or damage to private
property, utility lines, or the facilities of any existing Franchisee, interruption to the service of any
existing Franchisee, and any judgments or costs resulting from any litigation arising out of the
award of a Franchise to the Applicant or its activities pursuant thereto.
(c) Construction bond. Within thirty (30) days after the granting of a Franchise and
prior to the commencement of any construction work by the Grantee, the Grantee shall file with
the Town a construction bond in the amount specified in the Franchise in favor of the Town.
(d) Surety approval. Such bonds shall be in the form and with a surety approved by the
Town.
(e) Town rights. The rights reserved to the Town with respect to the construction bond
and performance bond are in addition to all other rights of the Town, whether reserved by this
Ordinance, the Franchise or authorized by law, and no action, proceeding or exercise of a right
with respect to such a bond shall affect any other right the Town may have.
(f) Consolidation. The Town, at its sole option, may waive this requirement, or permit
consolidation of the construction bond with the performance bond.
(g) Use of bonds. Prior to drawing upon the performance bond or construction bond for
the purposes described in this section, the Town shall notify the Grantee in writing that payment
is due and the Grantee shall have ten (10) days from the receipt of such written notice to make a
full and complete payment. If the Grantee does not make the payment within ten (10) days, the
Town may withdraw the amount thereof, with interest and penalties, from the performance bond
or the construction bond.
(h) Notification. Within three (3) days of a withdrawal from the bond, the Town shall
send to the Grantee, by certified mail, return receipt requested, written notification of the amount,
date and purpose of such withdrawal.
(i) Replenishment of bonds. No later than thirty (30) days, after mailing to the Grantee
by certified mail, notification of a withdrawal pursuant to Subparagraph F. above, the Grantee
shall replenish the Bonds in an amount equal to the amount so withdrawn. Failure to make timely
replenishment of such amount to the performance bond or construction bond shall constitute a
material violation of this Ordinance.
(j) Non-renewal, alteration, or cancellation of construction or performance bond.
The performance bond or construction bond required herein shall be in a form satisfactory to the
Town and shall require thirty (30) days written notice of any non-renewal, alteration or
cancellation to both the Town and the Grantee. The Grantee shall, in the event of any such
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cancellation notice, obtain, pay all premiums for, and file with the Town, written evidence of the
issuance of replacement bond or policies within thirty (30) days following receipt by the Town or
the Grantee of any notice of cancellation.
(k) Default. The performance bond or construction bond provided pursuant to this
section shall become the property of the Town in the event that the Franchise is canceled or
terminated by reason of the default of the Grantee.
(1) Town rights. The rights reserved to the Town with respect to the performance bond
or construction bond are in addition to all other rights of the Town, whether reserved by this
Ordinance, the Franchise or authorized by law, and no action, proceeding or exercise of a right
with respect to such performance or construction bonds shall affect any other right the Town may
have.
Sec. 5.1A-47. Regulation of franchise.
(a) On-going regulation. The Town shall exercise appropriate regulatory authority
under the provisions of this Ordinance and applicable law. This authority shall be vested in the
Town Council and administered through the Town Manager or his designee in order to provide
day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise
granted hereunder, and to carry out the Town's responsibilities with regard to cable television.
(b) Change in law or regulation. Notwithstanding any other provisions of this
Ordinance to the contrary, the Grantee shall at all times comply with all laws and regulations of
the local, State and Federal government. In the event that any actions of the State or Federal
government or any agency thereof, or any court of competent jurisdiction upon final adjudication,
substantially reduce in any way the power or authority of the Town under this Ordinance or the
Franchise, or if in compliance with any local, State, or Federal law or regulation, the Grantee
finds conflict with the terms of this Ordinance, the Franchise, or any law or regulation of the
Town, then as soon as possible following knowledge thereof, the Grantee shall notify the Town
of the point of conflict believed to exist between such law or regulation and the laws or
regulations of the Town, this Ordinance and the Franchise. The Town, at its option, may notify
the Grantee that it wishes to negotiate those provisions which are affected in any way by such
modification in regulations or statutory authority. Thereafter, the Grantee shall negotiate in good
faith with the Town in the development of alternate provisions which shall fairly restore the
Town to the maximum level of authority and power permitted by law. The Town shall have the
right to modify any of the provisions to such reasonable extent as may be necessary to carry out
the full intent and purpose of this Ordinance and the Franchise.
(c) Authority. The Town reserves the right to exercise the maximum plenary authority,
as may at any time be lawfully permissible, to regulate the cable television system, the Franchise
and the Grantee. Should applicable legislative, judicial or regulatory authorities at any time
permit regulation not presently permitted to the Town, the Town may without the approval of the
Grantee engage in any such additional regulation as may then be permissible, whether or not
contemplated by this Ordinance or the Franchise, including without limitation, regulation
regarding franchise fees, taxes, programming, rates charged to subscribers and users, consumer
protection, or any other similar or dissimilar matter.
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(d) Right of intervention. The Town shall have the right of intervention in any suit or
proceeding to which the Grantee is party, and the Grantee shall not oppose such intervention by
the Town.
(e) Expense reimbursement to town. The Grantee shall pay the Town a sum of money
which will, when added to any application fees received, reimburse all costs and expenses
incurred by it in connection with the granting, extending, or transferring a Franchise, including,
but not limited to, consultant fees, attorneys' fees, publication fees, travel expenses and all other
direct costs; provided, however, that the Town shall submit a detailed schedule of all such costs.
Such payment(s) shall be made within thirty (30) days after the Town furnishes the Grantee with
a written statement of such expenses.
(f) Performance Evaluation.
(1) Annual sessions. The Town and the Grantee shall, at the discretion of the
Town, hold scheduled performance evaluation sessions annually. All such evaluation
sessions shall be open to the public.
(2) Special sessions. Special evaluation sessions may be held at any time during
the term of the Franchise at the request of the Town.
(3) Topics for review. Topics which may be discussed at any scheduled or special
evaluation session may include, but not be limited to system performance and
construction, Grantee compliance with this Ordinance and the Franchise, 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.
(4) Cooperation by Grantee. During the review and evaluation by the Town, the
Grantee shall fully cooperate with the Town and shall provide such information and
documents as the Town may need to reasonably perform its review.
(5) Response to inquiries. The Town may, at any time, make inquiries, concerned
with the management and affairs of the cable television system. Grantee shall respond to
such inquiries in a timely fashion.
ARTICLE XII. ADMINISTRATION
Sec. 5.1A-48. Town manager--Generally.
The day-to-day regulation, enforcement and administration of any Franchise granted
under this Ordinance shall be the responsibility of the Town Manager.
Sec. 5.1A-49. Same--Functions.
The Town Manager's authority and responsibilities with respect to a Franchise granted
pursuant to this Ordinance shall include the following:
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(a) To assist in the preparation of the invitation to bid for cable television system
franchises, establish criteria for review and ranking of Franchise application, review and
screen applications for Franchises and make selection recommendations to the Council.
(b) To monitor and enforce all aspects of the Grantee's performance in meeting all
terms, provisions, requirements and construction schedules established in this Ordinance.
(c) To advise and make recommendations to the Council on matters which may
constitute grounds for revocation of a Franchise in accordance with this Ordinance.
(d) To monitor and investigate where appropriate complaints against the Grantee
by any person.
(e) To conduct investigations and reviews of cable television rates, to consider
input from the Cable Television Advisory Commission and to hire consultants if needed
in order to make recommendations to the Town Council regarding rate determinations.
ARTICLE XIII. RIGHTS OF INDIVIDUALS
Sec. 5.1A-50. Discriminatory employment practices prohibited.
The Grantees 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. The
Grantees shall strictly adhere to any equal employment opportunity requirements of the FCC. The
Grantees shall comply with all other applicable Federal, State and Town laws, and all executive
and administrative orders relating to nondiscrimination.
Sec. 5.1A-51. Privacy and other human rights.
The Grantee and the Town shall maintain constant vigilance with regard to possible
abuses of the right and privacy or other human rights of any subscriber, programmer or general
citizen resulting from any device or signal associated with the system.
Sec. 5.1A-52. Permission of property owner required.
No cable line, wire, amplifier, converter or other piece of equipment owned by a Grantee
shall be installed by a Grantee 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 Grantee shall remove forthwith any of its equipment which is both visible and
movable and promptly restore the property to its original condition.
Sec. 5.1A-53. Sale of subscriber lists prohibited.
Grantee shall comply with Section 631 of the Cable Act and FCC rules and regulations.
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ARTICLE XIV. MISCELLANEOUS PROVISIONS
Sec. 5.1A-54. Fraud.
It shall be unlawful for any person to defraud or attempt to defraud any cable television
system Grantee by attempting to obtain any service therefrom without payment as described in
Section 18.2-187.1 of the Code of Virginia. Any person who violates this provision, if the value
of service, credit or benefit procured is $100.00 or more, shall be guilty of a class 6 felony; or if
the value be less than $100.00 shall be guilty of a class 1 misdemeanor, as penalties for such are
set out in the Code of Virginia.
Sec. 5.1A-55. No recourse against the town.
The Grantee shall have no recourse whatsoever against the Town or its officials, boards,
commissions, agents or employees for any loss, cost, expense or damage arising out of any
provision or requirement of this Ordinance or because of the enforcement of this Ordinance,
unless the same shall be caused by criminal acts or by willful or gross negligence.
Sec. 5.1A-56. Official name of franchise.
Any Grantee 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. 5.1A-57. Extensions outside corporate limits.
For the purpose of determining the number of subscribers with respect to Section 5.1-43
of this Ordinance, subscribers residing outside the Town shall not be included.
Sec. 5.1A-58. Time is of the essence to this ordinance.
Whenever the Ordinance shall set forth any time for an act to be performed by or on
behalf of the Grantee, such time shall be deemed of the essence and any failure of the Grantee to
materially perform within the time allotted shall be sufficient ground for the Town to invoke an
appropriate penalty including possible revocation of the Franchise, subject to notice and a time to
cure.
Sec. 5.1A-59. No waiver of rights.
No course of dealing between the Grantee and the Town nor any delay on the part of the
Town in exercising any rights hereunder shall operate as a waiver of any such rights of the Town
or acquiescence in the actions of the Grantee in contravention of rights except to the extent
expressly waived by the Town or expressly provided for in the Franchise.
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ARTICLE XV. CABLE TELEVISION
ADVISORY COMMISSION
Sec. 5.1A-60. Commission established generally.
(a) The Leesburg Cable Television Advisory Commission is hereby established. The
Commission shall consist of seven members who shall be residents of the Town and appointed by
the Town council. An appointment to fill a vacancy shall be for the unexpired term. The council
shall appoint four members and three members shall be appointed by the Grantee by and with the
consent of the Town council. The council shall also appoint one of its members to the
Commission who shall be a non-voting member of the Commission and whose term of office
shall correspond to the official tenure of office as a council member. Commission members shall
serve staggered two-year terms. No member of the Commission shall have any interest in
Grantee or its contractors or be an employee of the Town. Members of the Commission shall be
subscribers of the cable television system during their terms when service is available to their
residences.
(b) Members shall be paid six hundred dollars ($600.00) each per year by the Town,
payable in equal monthly installments. Members shall be reimbursed for actual expenses incurred
in the exercise of their functions subject to the availability of fund appropriated for the purpose
and as approved in advance by the Town Manager.
(c) The Commission shall elect its chairman annually and the Town Manager, or his
designate, shall serve as secretary. The Commission shall meet monthly or more often as
determined by the Commission.
Sec 5.1A-61. Powers and duties.
The Commission shall have the following powers and duties:
(a) To adopt rules governing conduct of its business and meetings.
(b)
To maintain a continuous oversight and review of cable system operations and
advise the Town on Grantee's compliance with the terms of this contract.
(c)
To encourage the use of access channels among the widest range of institutions,
groups and individuals and to monitor Grantee's access policies and practices,
including charges for these services, to insure compliance with Section 5.1-55 of
the Town Code.
(d)
To make recommendations of general policy to the Grantee relating to the service
provided subscribers in the operation and use of access channels with a view of
maximizing the diversity of programs and services to subscribers.
(e)
To review Grantee's proposals for rate revisions and make timely findings of fact
and recommendations regarding rates to the Town in accordance with federal
law.
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(13
To make suggestions to the Grantee for appropriate local origination and public
access programming, and to resolve disputes regarding noncommercial use of
time on access channels.
(g)
To assist public access and other channel users with grants and other resources
made available to the Commission.
(h) To identify and pursue sources of funds for local programming.
(i)
To review and make recommendations to the Town on proposed annual budgets
for Town expenditures related to cable television.
(j)
To review, investigate and make findings of fact relating to compliance and
disputes arising from subscribers and other users of the system.
(k)
To require that Grantee prepare and make available to the public its current
policies and charges for commercial and noncommercial use of studio and
mobile television production facilities and access to channel time on the cable
television system.
SECTION 111. This ordinance shall become effective upon adoption.
PASSED this 31st day of October, 2000.
ATTEST:
Mayor
Town of Leesburg
C~rk of C~)uncil
O amend code 5.lA