HomeMy Public PortalAboutCable Tele Franchise OrdinanceMcCall, ID
Cable Television Franchise Ordinance
An Ordinance Setting Forth Regulations, Terms and Conditions
Under Which Cable Television Systems Shall Operate in McCall,
ID and Granting to Falcon Video Communications / DBA
CHARTER COMMUNICATIONS a Franchise to Construct,
Operate and Maintain a Cable Television System Within the City.
TABLE OF CONTENTS
TITLE AND PURPOSES OF ORDINANCE 1
DEFINITIONS 1
FRANCHISE TO OPERATE REQUIRED 3
GRANT OF FRANCHISE 3
FRANCHISE FEES 3
SUBSCRIBER RATES 4
CUSTOMER SERVICE AND CONSUMER PROTECTION 5
INFORMATION PROVIDED BY GRANTEE TO SUBSCRIBERS 6
TECHNICAL STANDARDS 7
EXTENSION OF CABLE SERVICE 7
FREE BASIC CABLE SERVICE TO PUBLIC BUILDINGS 9
INSURANCE 9
INDEMNIFICATION 10
FRANCHISE VIOLATIONS: PROCEDURES, NOTICE, AND CURE 10
FRANCHISE TERMINATION AND CONTINUITY OF SERVICE 11
FORCE MAJEUR 11
GRANT OF ADDITIONAL FRANCHISE AND COMPETING SERVICE PROVIDERS 12
TRANSFER OR ASSIGNMENT OF FRANCHISE 14
COMPLIANCE WITH STATE AND FEDERAL LAW 15
NOTICE TO THE GRANTEE 15
STREET OCCUPANCY 16
ACCESS TO PUBLIC AND PRIVATE PROPERTY 16
NONDISCRIMINATION IN EMPLOYMENT 17
GRANTEE MAY ISSUE RULES 17
SEVERABILITY OF ORDINANCE PROVISIONS 17
EFFECTIVE DATE 17
An Ordinance Setting Forth the Regulations, Terms and Conditions Under Which
Cable Television Systems Shall Operate in McCall, ID and Granting A Franchise to
Falcon Video Communications, BDA Charter Communications. Its Successors and
Assigns to Construct, Operate and Maintain a Cable Television System in the City
BE IT ORDAINED by the City of McCall, ID as follows:
1 TITLE AND PURPOSES OF ORDINANCE
This Ordinance shall be known as the McCall Cable Television Franchise Ordinance. The
purposes of this Ordinance are: a) to establish the terms and conditions under which a cable
television system must operate within McCall, ID (which may hereafter be referred to as "City",
"Franchising Authority", or "Grantor"); b) to provide for the payment of a franchise fee to the
City for costs associated with administering and regulating the system; and c) to grant a cable
television franchise to Falcon Video Communications/BDA CHARTER COMMUNICATIONS
(hereafter referred to as "Falcon" or "Grantee").
2 DEFINITIONS
For the purposes of this Ordinance the following terms, phrases, words and their derivations shall
have the meaning defined herein, unless the context clearly indicates that another meaning is
intended. Words used in the present tense include the future, words in the plural number include
the singular number, and words in the singular number include the plural number.
2.1 "Cable Act" means The Cable Communications Policy Act of 1984 as modified by
The Cable Television Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996.
2.2 "Cable Television System" means any non -broadcast facility consisting of a set of
transmission paths and associated signal reception, transmission and control equipment,
that is designed to distribute to subscribers or other users audio, video and other forms of
communications services via electronic or electrical signals.
2.3 "Channel" is a band of frequencies in the electromagnetic spectrum, capable of
carrying one audio-visual television signal.
2.4 "City" means McCall, ID in its present form or in any later reorganized,
consolidated, enlarged or reincorporated form, which is legally authorized to grant a cable
television franchise under state and federal law. The City may also be referred to as
"Franchising Authority" or "Grantor".
2.5 "Falcon" means Falcon Video Communications/ DBA CHARTER
COMMUNICATIONS, which may also be referred to as "Grantee".
2.6 "FCC" means the Federal Communications Commission.
2.7 "Franchise" means the rights granted pursuant to this Ordinance to construct, own
and operate a cable television system along the public ways in the City, or within
specified areas in the City.
2.8 "Franchise Area" means that portion of the City for which a franchise is granted
under the authority of this Ordinance. If not otherwise stated in an exhibit to this
Ordinance, the Franchise Area shall be the legal and geographic limits of the City,
including all territory which may be hereafter annexed to the City.
2.9 "Franchising Authority" means McCall, ID, its duly elected governing body, its
lawful successor or such other person or body duly authorized by the City to grant a cable
television franchise.
2.10 "Grantee" means a person or business entity, or its lawful successor or Assignee,
which has been granted a franchise by the City pursuant to this Ordinance.
2.11 "Gross Subscriber Receipts" as the term is used in calculating franchise fees
means revenues actually received by the Grantee from television services it provides to its
subscribers in McCall after deducting the following: a) any fees or assessments levied on
subscribers or users of the system which are collected by the Grantee for payment to a
governmental entity; b) franchise fees paid by the Grantee to the City; c) state or local
sales or property taxes imposed on the Grantee and paid to a governmental entity; and d)
federal copyright fees paid by the Grantee to the Copyright Tribunal in Washington, DC.
2.12 "Normal Business Hours" means those hours during which most similar
businesses in the community are open to serve customers.
2.13 "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.
2.14 "Public Way" or "Right -of -Way" means the surface, the air space above the
surface and the area below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, or other public
right-of-way including public utility easements or rights -of -way and any temporary or
permanent fixtures or improvements located thereon now or hereafter held by the City
which shall entitle the City and the Grantee to the use thereof for the purpose of installing
and maintaining the Grantee's cable television system.
2.15 "School" means any public elementary or secondary school.
2.16 "Service Interruption" means the loss of picture or sound on one or more cable
channels.
2.17 "Subscriber" means any person who receives monthly cable television service
provided by the Grantee's cable television system.
3 FRANCHISE TO OPERATE REQUIRED
It shall be unlawful to operate a cable television system within the City unless a valid franchise
has first been obtained from the City pursuant to the terms of this Ordinance. A franchise
granted pursuant to this Ordinance shall authorize the Grantee to provide cable television
services within the City and to charge subscribers for such services. It shall also authorize and
permit the Grantee to traverse any portion of the City in order to provide service outside the City.
Unless otherwise specified, the Franchise Area shall be the legal boundaries of the City.
4 GRANT OF FRANCHISE a CAL s l va 7 see /7 ` ��,/,,,���
�'b"UZ`g �i K/-
A franchise is hereby granted to Falcon Video Communications/BDA CHARTER
COMMUNICATIONS (which may be referred to herein as "Falcon" or "Grantee") to operate
and maintain a cable television system in the City for a period of twenty (20) years commencing
on the date of adoption of this ordinance. Falcon/Charter shall have the option to renew this
franchise for an additional term of five (5) years, provided that it is in substantial compliance
with the material terms of this ordinance at the time of its expiration.
5 FRANCHISE FEES
5.1 The Grantee shall pay a franchise fee which is intended to compensate the City for
all costs which may be associated with administering or regulating Grantee's cable
system. The amount of the franchise fee shall be five (5%) percent of the Grantee's
annual Gross Subscriber Receipts, as defined herein. Such fee shall be paid on an annual
basis. Grantee shall be entitled to list the franchise fee as a separate line item on monthly
bills.
5.2 Due to federal and local regulations requiring that Grantee notify cable
subscribers at least thirty (30) days prior to the effective date of any increases in monthly
charges on subscriber bills, any increased franchise fee amounts which may be due to the
City shall begin accruing sixty (60) days following the effective date of this Ordinance. If
the City requires more than thirty (30) days notice to subscribers of increased rates, then
any increased franchise fee amounts which may be due to the City shall begin accruing
sixty (60) days after the City's required notice period.
5.3 At the City's request, the Grantee shall file a report showing Grantee's Gross
Subscriber Receipts for the calendar year and the amount of franchise fees due to the
City. Such reports may be requested once per calendar year. The Grantee shall have an
obligation to maintain financial records of its Gross Subscriber Receipts and Grantee fee
payments for audit purposes for a period of three years, and the City shall have the right
to audit the Grantee's books at the offices where such books are maintained.
6 SUBSCRIBER RATES
6.1 All charges to subscribers shall be consistent with a schedule of fees for services
offered and established by the Grantee. Rates shall be nondiscriminatory in nature and
uniform to persons of like classes under similar circumstances and conditions.
6.2 The Grantee will provide the City with thirty (30) days advance written notice of
any change in rates and charges whenever possible.
6.3 Grantee may offer different or discounted rates at its discretion for promotional
purposes and may establish different rates for different classes of subscribers where
appropriate, such as offering discounted rates to low income individuals or groups or bulk
rates to multiple unit dwellings.
6.4 Grantee shall inform each new subscriber of all applicable fees and charges for
providing cable television service.
6.5 Grantee may, at its own discretion and in a non-discriminatory manner, waive,
reduce or suspend connection fees, monthly service fees or other charges on a one time or
monthly basis for promotional purposes.
6.6 Grantee may refuse to provide service to any person because a prior account with
that person remains due and owing.
6.7 A Grantee may offer service which requires advance payment of periodic service
charges.
6.8 The Grantee shall provide refunds to subscribers in the following cases:
6.8(a) If the Grantee fails within a reasonable time to commence service
requested by a subscriber, it will refund all deposits or advance charges that the
subscriber has paid in connection with the request for such service at the request
of the subscriber.
6.8(b) If a subscriber terminates any service at any time and has a credit balance
for deposits or unused services, upon request from the subscriber and upon return
of all of Grantee's equipment, the Grantee will refund the appropriate credit
balance to the subscriber. The subscriber will be responsible for furnishing the
Grantee a proper address to which to mail the refund.
6.8(c) If any subscriber's cable service is out of order for more than 48
consecutive hours during the month due to technical failure, damage, or
circumstances within the control of the Grantee, the Grantee will credit the
account of that subscriber on a pro rata basis upon the subscriber's written
request. The credit will be calculated using the number of twenty-four (24) hour
periods that service is impaired and the number of channels on which service is
impaired as a fraction of the total number of days in the month that the service
impairment occurs and the total number of channels provided by the system in the
absence of an impairment.
7 CUSTOMER SERVICE AND CONSUMER PROTECTION
7.1 Cable System Office Hours and Telephone Availability
The Grantee will maintain a local, toll -free or collect call telephone access line which will
be available to its subscribers 24 hours per day, seven days per week. Trained company
representatives will be available to respond to customer telephone inquiries during
normal business hours. After normal business hours, the access line may be answered by
a service or an automated response system, including an answering machine. Inquiries
received after normal business hours must be responded to by a trained company
representative on the next business day. Customer service center and bill payment
locations will be open at least during normal business hours.
7.2 Installation, Outages and Service Calls
7.2(a) Standard installations will be performed within seven (7) business days
after an order has been placed. "Standard" installations are those that are located
up to 125 feet from the existing distribution system.
{25 or l50' 10-
7.2(b) Excluding conditions beyond the control of the Grantee, the Grantee will
begin working on "service interruptions" promptly and in no event later than 24
hours after the interruption becomes known. The Grantee must begin actions to
correct other service problems the next business day after notification of the
service problem.
7.2(c) The "appointment window" alternatives for installations, service calls, and
other installation activities will be either a specific time or a four-hour time block
during normal business hours. The Grantee may schedule service calls and other
installation activities outside of normal business hours for the express
convenience of the customer.
7.2(d) If Grantee's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer
will be contacted. The appointment will be rescheduled, as necessary, at a time
which is convenient for the customer.
7.2(e) If the Grantee's service representative appears for an appointment
scheduled by a customer within the time period promised and no one is present at
the customer's dwelling to permit necessary physical access to the dwelling unit,
then Grantee may charge the customer for the service call, up to a maximum of
$25.
8 INFORMATION PROVIDED BY GRANTEE TO SUBSCRIBERS
8.1 The Grantee shall provide written information on each of the following areas at
the time of installation of service, at least annually to all subscribers, and at any time
upon request: products and services offered; prices and options for programming services
and conditions of subscription to programming and other services; installation and
services maintenance policies; instructions on how to use the cable service; channel
positions of programming carried on the system; and billing and complaint procedures,
including the address and telephone number of the local franchise authority's cable office.
8.2 Customers will be notified of any changes in rates, programming services or
channel positions thirty (30) days in advance of such changes if the change is within the
control of the Grantee. In addition, the Grantee shall notify subscribers thirty (30) days in
advance of any significant changes in the other information required by paragraph
(c)(3)(i)(A) of this section. Notwithstanding any other provision of Part 76, Grantee shall
not be required to provide prior notice of any rate change that is the result of a regulatory
fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any
Federal agency, State, or Franchising Authority on the transaction between the Grantee
and the subscriber.
8.3 Bills will be clear, concise and understandable. Bills will be itemized, with
itemizations including basic and premium service charges and equipment charges. Bills
will also clearly delineate all activity during the billing period, including optional charges,
rebates and credits. In case of a billing dispute, the Grantee must respond to a written
complaint from a subscriber within thirty (30) days.
8.4 Refund checks will be issued promptly, but no later than either: the customer's
next billing cycle following resolution of the request or sixty (60) days, or the return of
the equipment supplied by the Grantee if service is terminated.
8.5 Credits for services will be issued no later than the customer's next billing cycle
following the determination that a credit is warranted.
9 TECHNICAL STANDARDS
9.1 Grantee shall be responsible for insuring that the cable system is designed,
installed, and operated in a manner that fully complies with Federal Communications
Commission (FCC) rules regarding cable television technical standards. Grantee shall be
prepared to show, on request by an authorized representative of the Commission or the
Franchising Authority, that the system does, in fact, comply with the rules.
9.2 Grantee shall conduct complete performance tests of the system at least twice each
calendar year (at intervals not to exceed seven months), and shall maintain the resulting
test data on file at the Grantee's local business office for at least five (5) years. The test
data shall be made available for inspection by the Commission or the local franchiser,
upon request. The performance test shall be directed at determining the extent to which
the system complies with all the technical standards set forth in §76.605(a) of the
Commission's rules.
10 EXTENSION OF CABLE SERVICE
10.1 A Grantee which is not already serving the entire franchise area shall provide
service to all portions of the franchise area reaching a minimum density of thirty (30)
dwelling units per linear strand mile, as measured from the nearest coaxial cable line,
within twelve (12) months after the grant of a franchise.
10.2 Grantee shall provide aerial or buried drop lines to new subdivisions within the
franchise area at the request of the developer provided that the developer contracts and
agrees with the Grantee to pay the cost of the extension of the service.
10.3 Grantee shall extend and make cable television service available to any resident
within the franchise area who requests connection at the standard connection charge if the
connection to the resident would require no more than a standard one hundred and fifty
(150) foot aerial drop or a seventy-five (75) foot buried drop line or extension from the
nearest coaxial feeder cable. With respect to requests for connection requiring an aerial
W hak- our, - - c�5ts Stands,
or buried drop line in excess of the maximum standard distance, Grantee shall extend and
make available cable television service to such residents at a connection charge not to
exceed its actual costs for the distance exceeding the standard one hundred and fifty (150)
feet of aerial or seventy-five (75) feet of underground cable respectively.
10.4 In areas with fewer than thirty (30) residential units per proposed cable bearing
strand mile, Grantee shall offer a cost -sharing arrangement with residents. A dwelling
unit will be counted for this purpose if its lot fronts a street. The cost -sharing
arrangement shall consist of the following:
10.4(a)At the request of a resident desiring service, Grantee shall determine the
cost of the plant extension required to provide service to the potential subscriber
from the closest point on the cable system where it is technically feasible. The
cost of construction shall be allocated based on the following formula:
10.4(a)(1) If a request for extension of service into a residential area
requires the construction of cable plant which does not pass at least thirty
(30) potential subscribers per proposed cable bearing strand mile, Grantee
and residents who agree to subscribe to cable service will each bear their
proportionate share of construction costs. For example, if there are five
(5) dwelling units per proposed cable bearing strand mile, Grantee's share
will equal 5/30ths or one sixth (1/6) of the construction cost. The
remaining cost will be shared equally by each subscriber.
10.4(a)(2) Should additional residents actually subscribe to cable
television service in areas where subscribers have already paid a
proportionate share under the extension cost sharing formula, subscribers
who have previously paid a proportionate share under the extension
formula shall be reimbursed pro rata for their contribution or a
proportional share thereof. In such case, the pro rata shares shall be
recalculated and each new subscriber shall pay the new pro rata share, and
all subscribers who previously paid a proportionate share shall receive pro
rata refunds. In the event such subscribers (or prior subscribers) have
been disconnected or have moved and owe the Grantee money which has
not been recovered, Grantee shall have the right to first apply the refund to
amounts owed the Grantee and give the balance, if any to the subscriber.
At such time as there are thirty (30) potential subscribers per cable bearing
strand mile, the subscribers shall receive their pro rata share of
construction costs. In any event, one (1) year after the completion of a
project, subscribers who have paid a share of line extension costs are no
longer eligible for refunds, and the amounts paid in construction costs will
be credited to the plant account of Grantee.
10.4(a)(3) Where the density of residential dwelling and occupied
commercial or industrial structures, adverse terrain, or other factors render
extension of the system and offering of cable service impractical,
technically infeasible or would create an economic hardship, the City may,
upon petition of the Grantee, either waive the extension of the system into
such areas, or allow the extension and offer of service on special terms or
conditions which are reasonable and fair to the City, the Grantee and
potential subscribers in such areas.
11 FREE BASIC CABLE SERVICE TO PUBLIC BUILDINGS
Grantee shall provide, without charge, one service outlet activated for basic subscriber service to
each police station, fire station, public school, public library and the City office. If it is necessary
to extend Grantee's trunk or feeder lines more than two hundred (200) feet solely to provide
service to any such school or public building, the City or the building owner or occupants shall
have the option of either paying Grantee's direct costs for line extensions in excess of two
hundred (200) feet or releasing the Grantee from the obligation to provide service to such
building. Furthermore, Grantee shall be permitted to recover the direct cost of installing cable
service, when requested to do so, in order to provide: a) more than one outlet, b) inside wiring,
or c) a service outlet requiring more than two hundred (200) feet of drop cable to any public
building.
12 INSURANCE Y llIAgne cti
Within nine
insurance policies:
ays following the grant of a franchise the Grantee shall obtain the following
12.1 A general comprehensive liability policy indemnifying, defending and saving
harmless the City, its officers, boards, commissions, agents or employees from any and all
claims by any person whatsoever on account of injury to or death of a person or persons
occasioned by the operations of the Grantee under the franchise herein granted, or alleged
to have been so caused or occurred, with a minimum liability of Five Hundred thousand
Dollars ($500,000) per personal injury, death of any one person or damage to property /0ca
and One Million Dollars ($1,000,000) for personal injury, death of any two or more
persons in any one occurrence or damage to property.
12.2 All insurance policies called for herein shall be in a form satisfactory to the City
and shall require thirty (30) days written notice of any cancellation to both the City and
the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay
all premiums for, and file with the City, written evidence of the issuance of replacement
policies within thirty (30) days following receipt by the City or the Grantee of any notice
of cancellation. In recognition of the foregoing each party agrees to cause their respective
insurance carriers to waive any rights of subrogation.
13 INDEMNIFICATION
The Grantee, by its acceptance of a franchise granted pursuant to this Ordinance, shall indemnify
and hold harmless the City, its officials, boards, commissions and employees against any and all
claims, suits, causes of action, proceedings, and judgments for damage arising out of the award
of a franchise to the Grantee and its operation of the cable television system under the franchise.
These damages shall include, but not be limited to, penalties arising out of copyright
infringements and damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors or licensees of programs to be delivered by the Grantee's cable
television system whether or not any act or omission complained of is authorized, allowed, or
prohibited by the franchise.
14 FRANCHISE VIOLATIONS: PROCEDURES, NOTICE, AND CURE
Before exercising any right of redress available to it under the terms of this Ordinance,
including determination of any penalty assessable under applicable law, the City shall
follow the procedures set forth in this Section.
14.1 The City shall notify Grantee in writing, by Certified Mail, of any alleged
violation, ("Violation Notice") which notice shall include a detailed description of
any alleged violation and a request for cure of such violation.
14.2 Grantee shall have thirty (30) days from the date of receipt of such notice to
respond in writing, indicating: (1) that Grantee has cured the alleged violation,
providing reasonable documentation demonstrating that the alleged violation has
been cured; (2) that Grantee has commenced or will commence actions to cure the
alleged violation, but that the alleged violation cannot reasonably be cured
immediately, describing the steps taken to be taken to cure the alleged violation;
or (3) that Grantee disagrees with the allegation that a violation has occurred and
contests the Violation Notice, stating the reasons therefor. If a violation is cured
by Grantee within sixty (60) days of receipt of notice, then no penalty shall be
imposed.
14.3 Upon receipt of Grantee's response to the Violation Notice, the City may either
accept Grantee's proposed cure and/or explanation, or if it believes that the
violation will not be cured within a reasonable period of time, the City may
schedule an administrative hearing, providing Grantee no less than fifteen (15)
days written notice of the hearing which shall afford Grantee due process
including an opportunity to present evidence.
14.4 Within fifteen (15) days following an administrative hearing on an alleged
violation, the City shall issue a written report stating its findings and the reasons
therefor. The City may determine (a) that the alleged violation has been corrected,
or is in the process of being corrected by Grantee, and that no further action is
required; (b) that an extension of the time or other appropriate relief should be
granted until the cure for the problem can be completed by Grantee; (c) that the
problem is beyond Grantee's direct control and that Grantee is not at fault; or, (c)
that other appropriate action should be taken.
14.5 In cases involving construction codes or technical standards, if the alleged
violation does not pose a substantial and immediate safety hazard, Grantee shall
be allowed a reasonable and sufficient time to complete any required corrections
or repairs to the system to remedy any alleged noncompliance. So long as Grantee
is making a good faith effort to correct the alleged noncompliance, no penalties
shall be assessed. A "substantial and immediate safety hazard" shall be defined as
one posing an imminent likelihood of injury to persons if not repaired
immediately. Grantee shall not be penalized for other minor violations of the
Franchise or applicable codes, so long as it demonstrates it is making good faith
efforts to correct any problem or violation within a reasonable period of time of
the discovery of alleged violation.
15 FRANCHISE TERMINATION AND CONTINUITY OF SERVICE
15.1 In the event of a formal denial of renewal or revocation of a franchise, which
denial or revocation is upheld by final judicial adjudication of any appeal(s) which may
be filed, the Grantee shall be have a period of one (1) year from such final adjudication
within which to transfer or convey the assets of the cable system to another owner.
Approval of such proposed transfer or assignment shall not be unreasonably withheld by
the City.
15.2 In the event the franchise term expires prior to formal action being taken by the
City either to renew the franchise or deny renewal, the term of this franchise shall
automatically be extended until such time as formal action to renew or deny renewal is
taken by the City. The renewal procedures and criteria contained in Section 626(c) of the
Cable Communications Policy Act of 1984, as amended, shall be followed by the City
and the Grantee.
16 FORCE MAJEUR
In the event the Grantee is prevented or delayed in the performance of any of its obligations
under this Ordinance by reason of flood, fires, hurricanes, tornadoes, earthquakes or other acts of
God, unavoidable casualty, insurrections, war, riot, sabotage, unavailability of materials or
supplies, vandalism, strikes, boycotts, lockouts, labor disputes, shortage of labor, unusually
severe weather conditions, acts or omissions or delays by utility companies upon whom Grantee
is dependent for pole attachments or easement use, Grantee is unable to obtain necessary
financing or any other event which is beyond the reasonable control of the Grantee, the Grantee
shall have a reasonable time under the circumstances to perform its obligations under this
Ordinance or to procure a reasonable and comparable substitute for such obligations. Under such
circumstances the Grantee shall not be held in default or noncompliance with the provisions of
the Ordinance nor shall it suffer any penalty relating thereto.
17 GRANT OF ADDITIONAL FRANCHISE AND COMPETING SERVICE
PROVIDERS
17.1 Application Procedures
17.1(a) An application for a new cable television franchise shall be submitted to
the City in a form specified by or acceptable to the City, and in accordance with
procedures and schedules established by the City. The City may request such
facts and information as it deems appropriate.
17.1(b)Upon request, any applicant shall furnish to the City a map of suitable
scale, showing all roads and public buildings, which indicates the areas to be
served and the proposed dates of commencement of service for each area. The
proposed service area shall be subject to approval by the City. If approved, the
service area shall be incorporated into any franchise granted pursuant to this
Ordinance. If no service area is specifically delineated in a franchise, it shall be
considered to be coterminous with the boundaries of the City.
17.1(c)After receiving an application for a franchise, the City shall examine the
legal, financial, technical and character qualifications of the applicant. The City
may grant one or more non-exclusive franchises creating a right to construct and
operate a cable television system within the public ways of the City, subject to the
provisions of this Section.
17.1(d)In the event an application is filed proposing to serve a franchise area
which overlaps, in whole or in part, an existing Grantee's franchise area, a copy of
such application shall be served upon any existing Grantee by the City by
registered or certified mail. Such notice shall be considered a condition precedent
to consideration of the application for a franchise by the City.
17.2 Competing Service Providers
17.2(a) Any franchise granted by the City shall be non-exclusive. However,
nothing in this ordinance shall be construed to require it to grant more than one
franchise if the City determines, pursuant to the procedures established in this
Ordinance, that granting additional franchises would be detrimental to the public
interest.
17.2(b)In the event a competing service provider commences operation of a
communications facility which offers services similar to those offered by Grantee,
the City shall not require Grantee to operate under terms or conditions otherwise
required by this Ordinance which are either less favorable or more burdensome
than those under which the competing service provider must operate. Any
franchise which may be granted by the City to a competing service provider shall
require the new Grantee to provide cable service to the entire franchise area then
served by the existing Grantee. An existing Grantee may, at its discretion, comply
with the most favorable terms contained in any subsequent franchise granted by
the City.
17.2(c) Since competing or overlapping franchises may have an adverse impact on
the public rights -of -way, on the quality and availability of communications
services to the public and may adversely affect the existing operator's ability to
continue to provide the services and facilities it is presently providing under this
Ordinance, the City may issue a franchise in an area where another Grantee is
operating only following a public hearing to consider the potential impact which
the grant of an additional franchise may have on the community. In considering
whether to grant one or more additional franchises, the City shall specifically
consider, and address in a written report, the following issues:
17.2(c)(1) The positive and/or negative impact of an additional
franchise on the community.
17.2(c)(2) The ability and willingness of the specific applicant in
question to provide cable television service to the entire franchise area
which is served by the existing cable operator. The purpose of this
subsection is to ensure that any competition which may occur among
Grantees will be on equal terms and conditions so as not to give a
competitive advantage to one Grantee over another.
17.2(c)(3) The amount of time it will take the applicant to complete
construction of the proposed system and activate service in the entire
franchise area; and, whether the applicant can complete construction and
activation of its system in a timely manner.
17.2(c)(4) The financial capabilities of the applicant and its
guaranteed commitment to make the necessary investment to erect,
maintain and operate the proposed cable TV system for the duration of the
franchise term. In order to ensure that any prospective Grantee does have
the requisite current financial capabilities, the City may request equity and
debt financing commitment letters, current financial statements, bonds,
letters of credit or other documentation to demonstrate to the City 's
satisfaction that the requisite funds to construct and operate the proposed
system are available.
17.2(c)(5) The quality and technical reliability of the proposed system,
based upon the applicant's plan of construction and the method of
distribution of signals, and the applicant's technical qualifications to
construct and operate such system.
17.2(e)(6) The experience of the applicant in the erection,
maintenance and operation of a cable television system.
17.2(c)(7) The capacity of the public rights -of -way to accommodate
one or more additional cable systems and the potential disruption of those
public rights -of -ways and private property that may occur if one or more
additional franchises are granted.
17.2(c)(8) The disruption of existing cable television service and the
potential that the proposed franchise would adversely affect the residents
of the City.
17.2(c)(9) The likelihood and ability of the applicant to continue to
provide competing cable television service to subscribers within the entire
franchise area for the duration of the franchise.
17.2(e)(10) Such other information as the City may deem appropriate to
be considered prior to granting any competing or overlapping franchise.
17.3 Permits for Non -Franchised Entities
The City may issue a license, easement or other permit to a person other than the Grantee
to permit that person to traverse any portion of the Grantee's franchise area within the
City in order to provide service outside, but not within the City. Such license or
easement, absent a grant of a franchise in accordance with this Ordinance, shall not
authorize nor permit said person to provide cable television service of any type to any
home or place of business within the City nor render any other service within the City.
18 TRANSFER OR ASSIGNMENT OF FRANCHISE
18.1 A Grantee may transfer or assign its franchise to another entity (the "Assignee")
upon thirty (30) days notice to the City . The Grantee shall provide to the City a
reasonable showing that the proposed Assignee or Transferee possesses the technical and
financial qualifications to operate the cable TV system properly. The proposed Transferee
or Assignee shall provide the City with a written statement that it agrees to comply with
all material terms of the franchise to be transferred. The City shall not unreasonably delay
or deny the assignment or transfer of a franchise. The reasonableness of the City's actions
shall be subject to judicial review by a court of appropriate jurisdiction. The proposed
transfer or assignment shall be deemed approved if no action is taken by the City within
sixty (60) days of the written request for transfer by the Grantee.
18.2 The Grantee may secure financing or an indebtedness by trust, mortgage, or other
instrument of hypothecation of the franchise, in whole or in part, without requiring the
consent of the City. Consent shall not be required to assign a franchise from one business
entity to another which is operated or managed by the Grantee or any affiliated entity. In
addition, so long as the manager and/or general partner of the Grantee remains the same,
consent shall not be required to transfer the interests of any limited partner of the Grantee,
who has no day to day operational control of the Grantee or the system.
18.3 A Grantee may transfer or assign its franchise to an affiliated entity upon thirty
(30) days notice to the City. Consent of the City shall not be required for such an
assignment, provided that; a) the City is provided with a reasonable showing that the
proposed Assignee possesses the technical and financial qualifications to operate the
cable TV system and, b) that the Assignee agrees to comply with the terms of this
Ordinance.
19 COMPLIANCE WITH STATE AND FEDERAL LAW CAlit 0,1\16S 0�(Ct
The Grantee and the City shall at all times comply with all applicable State and Federal laws and
the applicable rules and regulations of administrative agencies. If the Federal Communications
Commission (FCC) or any other federal or state governmental body or agency enacts any law or
regulation or exercises any paramount jurisdiction over the subject matter of this Ordinance or
any franchise granted hereunder, the jurisdiction of the City shall cease and no longer exist to the
extent such superseding jurisdiction shall preempt or preclude the exercise of like jurisdiction by
the City. The City and the Grantee reserve all rights they each may possess under law, unless
expressly waived herein.
20 NOTICE TO GRANTEE
Except as otherwise provided in this Ordinance, the City shall not meet to take any action
involving the Grantee's franchise unless the City has notified the Grantee by certified mail at
least thirty (30) days prior to such meeting, as to its time, place and purpose. The notice
provided for in this section shall be in addition to, and not in lieu of, any other notice to the
Grantee provided for in this Ordinance. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if mailed by certified mail return receipt requested, addressed to the Grantee's
corporate office as follows:
Falcon Video Communications
10900 Wilshire Boulevard, 15th Floor
Los Angeles, California 90024
Attn: Howard Gan
21 STREET OCCUPANCY
21.1 Grantee shall utilize existing poles, conduits and other facilities whenever
possible, but may construct or install new, different, or additional poles, conduits, or other
facilities whether on the public way or on privately -owned property with the written
approval of the appropriate government authority, and, if necessary the property owner.
Such approval shall not be unreasonably withheld by the governmental agency.
21.2 All transmission lines, equipment and structures shall be so installed and located
as to cause minimum interference with the rights and appearance and reasonable
convenience of property owners who adjoin on any public way and at all times shall be
kept and maintained in a safe condition and in good order and repair. The Grantee shall
at all times employ reasonable care and shall use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage, injuries or
nuisances to the public.
21.3 Grantee shall have the authority to trim trees on public property at its own
expense as may be necessary to protect its wires and facilities, subject to the direction of
the City or other appropriate governmental authority.
22 ACCESS TO PUBLIC AND PRIVATE PROPERTY
22.1 Grantee shall have the right to enter and have access to the property, premises and
easements of the City for purpose of installing cable TV service or recovering and
removing Grantee's property and equipment when a subscriber's service is terminated.
The right of Grantee to enter onto the property of a subscriber shall be governed by the
agreement between Grantee and the subscriber.
22.2 The City shall not permit any person who owns or controls a residential multiple
unit dwelling, trailer park, condominium, apartment complex, subdivision or other
property to interfere with the right of any tenant, resident or lawful occupant thereof to
receive cable installation, service or maintenance from Grantee, except as federal or state
law shall otherwise require.
23 NONDISCRIMINATION IN EMPLOYMENT
The Grantee shall neither refuse to hire nor discharge from employment nor discriminate against
any person in compensation, terms, conditions, or privileges of employment because of age, sex,
race, color, creed, or national origin. The Grantee shall insure that employees are treated without
regard to their age, sex, race, color, creed or national origin.
24 GRANTEE MAY ISSUE RULES
The Grantee shall have the authority to issue such rules, regulations, terms and conditions of its
business as shall be reasonably necessary to enable it to exercise its rights and perform its
services under this Ordinance and the Rules of the FCC, and to assure uninterrupted service to
each and all of its subscribers. Such rules and regulations shall not be deemed to have the force
of law.
25 SEVERABILITY OF ORDINANCE PROVISIONS
If any section of this Ordinance or the franchise, or any portion thereof, is held invalid or
unconstitutional by any court of competent jurisdiction or administrative agency, such decision
shall not affect the validity of the remaining portions of the Ordinance or franchise.
26 EFFECTIVE DATE
This ordinance shall become effective upon the date of its adoption by the City. Any failure by
the City to follow proper procedures under state or local law in adopting this Ordinance or
granting a franchise shall not abrogate the rights or obligations of either the Grantee or the City
under this Ordinance. If, following adoption of this Ordinance it is subsequently determined that
proper legal procedures have not been followed by the City, it shall be the responsibility of the
City to rectify any procedural defects and ratify the terms of this Ordinance.
PASSED AND APPROVED by the City of McCall this day of
BY:
Title:
ATTEST:
Title:
ACCEPTED BY Falcon Video Communications. Dba Charter Communications
BY:
Title:
ATTEST:
Title: