ORD 255ORDINANCE NO. 255
AN ORDINANCE REPEALING CHAPTER 5.10 OF THE LA QUINTA
MUNICIPAL CODE AND REPLACING THE PRIOR CHAPTER WITH A
NEW CHAPTER 5.10, ADOPTING NEW COMPREHENSIVE REGULATORY
PRACTICES FOR MULTI -CHANNEL SERVICE PROVIDERS INCLUDING
THOSE PROVIDERS KNOWN AS CABLE OPERATORS, AND INCLUDING
PROVISIONS FOR INSURANCE, REPORTS AND RECORDS, CONSUMER
PRACTICES, CONSUMER PROTECTION MEASURES, CONSTRUCTION
AND CONSTRUCTION -RELATED PRACTICES, FRANCHISE FEES AND
ALTERNATIVE USER CHARGES, RATE REGULATION PROVISIONS FOR
BASIC SERVICE TIER AND ASSOCIATED CHARGES, OPERATION
PROCEDURES, AND HEALTH, SAFETY, AND WELFARE MEASURES;
PROVIDING AN EFFECTIVE DATE
WHEREAS, the City Council for the City of La Quinta, California finds that the health,
safety, and welfare of the citizens of La Quinta, California requires that a comprehensive
ordinance be enacted which establishes a regulatory framework applicable to the provision of all
multi -channel service providers within its territorial jurisdiction;
BE IT ORDAINED by the City Council of the City of La Quinta, California as follows:
Section 1. Chapter 5.10 of the La Quinta Municipal Code is hereby deleted and
replaced in its entirety as set forth on Exhibit "A" attached hereto.
Section 2. The City Clerk shall certify to the passage and adoption of this ordinance
and shall cause it to be posted or published in a manner required by law.
Section 3. This ordinance shall become effective thirty days following the second
reading of the approval of its adoption by the City Council.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of La Quinta,
on this 4th day of October , 1994, by the following vote, to wit:
AYES: Council Members Bangerter, McCartney, Perkins, Sniff,
Mayor Pena
NOES: None
ABSENT: None
ABSTAIN: None
City of La Quinta, California
AT E T:
AUNDRA JUHOLA, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
"2 / /Z/�'
DAWN HONEYWELL, City Attorney
City of La Quinta, California
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE) ss.
CITY OF LA QUINTA )
I, SAUNDRA L. JUHOLA, City Clerk of the City of La Quinta, California, do hereby certify
the foregoing to be a full, true and correct copy of Ordinance No. 255 which was introduced
on the 20th day of September, 1994 and was adopted at a regular meeting held on the 4th day
of October, 1994 not being less than 5 days after date of introduction thereof.
I faf certify that the foregoing ordinance was posted in three (3) places within the City of
La nta as specified in a resolution of the City Council.
JAUNDRA L. JVHOLA, City Clerk
City of La Quinta, California
DECLARATION OF POSTING
I, SAUNDRA L. JUHOLA, City Clerk of the City of La Quinta, California, do hereby certify
tha the foregoing ordinance was posted on October 12, 1994 pursuant to City Council
Re lution.
SAUNDRA L. JU OLA, City Clerk
City of La Quinta, California
EXHIBIT A
CABLE TELEVISION SYSTEMS
5.10.010 Title.
This ordinance law may be known and cited as the Multi -Channel Service (MCS)
Providers Regulatory Ordinance for the City of La Quinta, California.
5.10.020 Construction.
This ordinance shall be construed in accordance with the applicable Federal and State
laws governing multi -channel service practices which specifically includes the operation and
provision of a cable television system.
5.10.030 Scope.
This ordinance shall apply within the geographical limits of the City, including any areas
subsequently annexed by the City, unless State law prescribes otherwise, or in some fashion
restricts or alters the effect of this ordinance to a subsequently annexed area of the City.
5.10.040 Severability.
If any word phrase, sentence, part, section, subsection, or other portion of this ordinance,
or any application thereof to any person or circumstance is declared void, unconstitutional, or
invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other
portion, or the proscribed application thereof, shall be severable, and the remaining provisions of
this ordinance, and all applications thereof, not having been declared void, unconstitutional, or
invalid, shall remain in full force and effect.
5.10.050 Definitions.
For purposes of this ordinance, and where not otherwise inconsistent with the context of a
particular Section, the defined terms, phrases, words, abbreviations, and their derivations shall
have the meaning given in this Section. When not inconsistent with the context, words in the
present tense include the future tense, words used in the plural number include words in the
singular number, and words in the singular number include the plural number. The word "shall"
is always mandatory and not merely directory.
A. "Abandoned calls" means those telephone calls that are connected to an MCS
provider's general information number, without being answered by a representative of the MCS
provider, or by a device capable of problem and/or inquiry resolution (e. g. placing a service
request, placing a work order, directing calls to the appropriate personnel, or the like).
B. "Access channel" means a noncommercial government, education, or public
channel which is carried on a multi -channel system, but which is not part of any institutional
network.
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C. "Activated channel" means a channel engineered at the headend of the
multi -channel system for the provision of services generally available to residential subscribers of
the multi -channel system, regardless of whether such services actually are provided, including
any channel designated for governmental, educational, or public use.
D. "Affiliate" when used in relation to any person, means another person who owns
or controls, is owned or controlled by, or is under common ownership or control with such
person.
E. "A la carte" or "Menu -driven" or "menu -driven cable" or "menu -driven
program/service" means the process whereby the MCS provider offers multi -channel services via
the multi -channel system in a format that allows the subscriber to select and be charged for
multi -channel services on either a per channel, per program, or per event basis. Therefore,
menu -driven cable allows the subscriber to create his or her own service tier(s) or cluster(s), and
the opportunity to change the composition of his or her tier(s) or cluster(s) on a periodic basis.
F. "Alternative user charge" means a charge used in place of a franchise fee that the
Council requires as payment for the privilege of using the streets, easements, public ways, or
rights -of -way of the City in order to construct, maintain, and/or operate a multi -channel system.
An alternative user fee is not based on an MCS provider's gross annual revenues (as is the case
in a franchise fee), but rather is based on the value of the City property that an MCS provider
uses to construct, maintain, and operate its multi -channel system.
G. "Applicant" means a person submitting an application or proposal to the City for a
license or franchise (where required) to operate a multi -channel system under the terms and
conditions set forth in this ordinance, and any required State regulations.
H. "Application" or "Proposal" are synonymous for the purposes of this ordinance.
An "application" or "proposal" means the process by which the applicant submits a request for an
initial request, not inclusive of a renewal proposal, and indicates a desire to be granted a
multi -channel service license or franchise (where required) for all, or a part, of the City. An
"application" or "proposal" includes all written documentation, and verbal statements and
representations, in whatever form or forum, made by an applicant to the Council/franchising
authority concerning the construction, rendering of services, maintenance, or any other matter
pertaining to the proposed multi -channel system.
I. "Assignment" or "Transfer" means any assignment, transfer, sale or other
permitted transaction of a franchised multi -channel system, or its corporate or partnership parent
which has the effect of changing the operational, managerial, or financial control of the
franchised multi -channel system.
J. "Auxiliary equipment" means equipment supplied by the MCS provider (such as a
converter, remote control unit or device, digital tuner, or input selector switch), to enhance or
assist in the reception or provision of multi -channel service.
K. "Basic cable television service" means any service tier which includes the
retransmission of local television broadcast signals and any public, educational and government
access channels. The term "basic cable television service" includes any service or programming
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service required to be included in basic cable television service as a result of the Cable Television
Consumer Protection Act of 1992.
L. "Cable Act" or "CCPA" means the Cable Communications Policy Act of 1984, as
amended by the Cable Television Consumer Protection Act of 1992, all of which are amendments
to the Communications Act of 1934, and any other subsequent amendments.
M. "Cable channel" or "Cable television channel" means a portion of the
electromagnetic or light frequency spectrum used in a cable system which is capable of delivering
a television channel (as "television channel" is defined by the FCC by regulation).
N. "Cable operator" means any person or group of persons who:
1. provides cable television service over a cable system and directly or through one
(1) or more affiliates owns a significant interest in such cable system; or
2. otherwise controls or is responsible for, through any arrangement, the
management and operation of such a cable system.
O. "Cable service" means:
1. the one-way transmission to subscribers of video programming, or other
programming service; and
2. subscriber interaction, if any, or other programming which is required for the
selection of such video programming service.
P. "Cable system" or "Cable television system" means a facility consisting of a set of
closed transmission paths and associated signal generation, reception, and control equipment that
is designed to provide cable service which includes video, voice or data programming as defined
in the Federal Cable Act of 1984 and 1992, and which is provided to multiple subscribers within
the City. However, such terms do not include the following:
1. a facility that serves only to retransmit the television signals of one (1) or more
broadcast stations; or
2. a facility that serves only subscribers in one (1) or more multiple unit dwellings
under common ownership, control, or management unless such facility or facilities uses any
public rights -of -way; or
3. 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, except that such facility shall be
considered a cable system (other than for purposes of Section 621(c) of the Cable Act -- codified
at 47 USC 541) to the extent such facility is used in the transmission of video, voice, or data
programming or service directly to subscribers; or
4. any facilities of any electric utility used solely for operating its electric utility.
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Q. "Charge" means a one-time or non -regularly occurring cost paid by the
subscriber, and which is associated with the installation, maintenance, service, or repair of the
multi -channel service. Specifically, a "charge" includes, but is not limited to: installation costs
for multi -channel service; address change charges for subscribers; disconnection fees; downgrade
charges; costs for closed -captioned devices and equipment, remote control devices and equipment
for hearing -impaired customers; installation charges for video camera recorders and players;
installation charges for digital radio; installation charges for on-line computer services and/or
interactive equipment; and trip or service call charges.
R. "City" means the City of La Quinta, California.
S. "City Council" means the City Council for the City of La Quinta, California.
T. "Collection charge" means a charge or fee imposed on a customer by an MCS
provider for such provider's efforts at collecting, or attempting to collect, a past due account.
U. "Commercially impracticable" means with respect to any requirement applicable to
an MCS provider, that it is commercially impracticable for such an MCS provider to comply
with such requirement as a result of a change in conditions which is beyond the control of such
an MCS provider, and the non-occurrence of which, was the basic assumption on which the
requirement was based.
V. "Converter" means any electric, electronic, or other device, separate and apart
from the subscriber's receiver that is capable of converting or changing signals to a frequency not
intended to be susceptible to interference within the television, video, or data receiver of a
subscriber, and by an appropriate channel or other type of selector may also permit a subscriber
to view or otherwise use signals delivered at designated dial locations, or such other reception
and use allocations as may be applicable and required for the practical use of the signal.
W. "Council/franchising authority" means the City Council for the City of La Quinta,
California.
X. "CSR" means customer service representative.
Y. "Customer" means a subscriber or user of the services and/or facilities of the
multi -channel system provided by an MCS provider.
Z. "Disaster emergency" means an imminent, impending, or actual natural or
humanly induced situation wherein the health, safety, welfare of the residents of the City is
threatened. A "disaster emergency" (by illustration) may include a sudden or expected insect
infestation (such as with locusts, grasshoppers, or bees), snowstorm, flood, hail storm, tornado,
severe thunderstorm, earthquake, hazardous waste infiltration, fire, an explosion (involving
petroleum, munitions, or nuclear facilities or weapons), or an aircraft crash.
AA. "Downgrade" means a change in the level of a subscriber's multi -channel service
from a more comprehensive level of multi -channel service (in terms of services or channels
provided), to a less comprehensive level of multi -channel service (in terms of services or
channels provided).
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BB. "Drop" means a small branch of cable, or other transmitting medium which
connects the terminals on the subscriber's receiver to the trunk or feeder cable or future technical
equivalent.
CC. "Easement" means and shall include any public easement or other compatible use
created by dedication, or by other means, to the City for public utility purposes or any other
purpose whatsoever, including cable television, or any multi -channel service. "Easement" shall
include a private easement used for the provision of cable service or any other multi -channel
service.
DD. "FCC" means the Federal Communications Commission and/or such other Federal
regulatory agency as now or in the future may have jurisdiction to oversee MCS providers.
EE. "Fiber cable" or "Fiber optic cable" means very thin and pliable cylinders, or
strands of glass or plastic, or any future functional equivalent, used to carry wide bands of
multiple frequencies.
FF. "Franchise" means the initial authorization or subsequent renewal granted by the
City in order for a person to construct, operate, and/or maintain a franchised MCS system in all,
or part, of the City.
GG. "Franchise agreement" means the separate contract by which the City grants an
MCS provider the right to operate a franchised multi -channel system within all, or a part, of the
City.
HH. "Franchise expiration" or "Franchise agreement expiration" means the date of
expiration, or the end of the term of a franchised MCS provider's franchise.
II. "Franchise fee" means a fee or charge that the City requires as payment for the
privilege of using the streets, rights -of -way, public ways, and easements of the City in order to
construct, maintain, and operate a franchised multi -channel system.
JJ. "Franchised MCS provider" means a person that is awarded a franchise by the
City to construct or operate a franchised multi -channel system, within all, or part, of the City.
The term "franchised MCS provider" specifically includes the term "cable operator".
KK. "Franchising authority" means City Council for the City of La Quinta, California.
LL. "Functional equivalent" or "Functionally equivalent" with respect to a
specifically -named or referenced piece of multi -channel system equipment, means another piece
of multi -channel system equipment that has either
1. the same or substantially similar characteristics qualities, operational capabilities,
design functions as the original, specifically -named or referenced piece of multi -channel system
equipment; or
2. operates in substantially the same form and fashion as the original,
specifically -named or referenced piece of multi -channel equipment; or
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3. operates in a technologically superior manner to the original, specifically -named
or referenced piece of multi -channel equipment.
MM. "Gross revenue" for any period means any and all revenues of a MCS provider,
its affiliates, subsidiaries, parent, or any person, firm, or corporation in which a firm has a
financial interest for that period which are derived from the operation of the MCS system within
the City, including all revenues for any period which are derived from, or attributable to, the
operation of the MCS system or are occasioned by the grant of the franchise. "Gross Revenue"
includes any and all revenue in whatever form (cash, exchange, or other consideration).
However, "Gross Revenue" does not include, any taxes imposed and/or assessed by law on
subscribers (such as State sales taxes) which an MCS provider collects and pays in full to the
applicable authorities. For purposes of this ordinance, the "gross revenues" computational base
shall include any, and all, revenues or fees collected by an MCS provider which are designated
or classified as, or set -aside or attributed for, franchise fees.
NN. "Headend" means the electronic control center, where incoming signals, including
those of television broadcast stations are amplified, modulated, filtered, converted, or in any way
processed or converted for redistribution to subscribers.
00. "Holiday" means a day recognized by the State in which a substantial portion of
the area's workers are exempt from work even though paid.
PP. "Late charge" means a charge which is added to a customer's account or bill for
non-payment of a previously due and delinquent account.
QQ. "Mayor" means the Mayor for the City of La Quinta, California.
RR. "MCS" means multi -channel service.
SS. "MCS provider" or "Multi -channel service provider" means any person or group
of persons who:
1. provides multi -channel communications service over a multi -channel system,
regardless of the technology employed and subject to federal and state preemption or limitation,
and directly or indirectly owns a significant interest in such multi -channel system; or
2. who otherwise controls or is responsible for through any arrangement, the
management and operation of such a multi -channel system.
The term "MCS provider" or "multi -channel service provider" specifically includes the terms
"cable operator", "MDS provider" or "multi -point distribution system provider", "MMDS
provider", personal communications network system provider (where applicable and permitted
under State rule or regulation), and "SMATV operator."
TT. "MDS" means multi -point distribution system.
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— UU. "MDS provider" or "Multi -point distribution system provider" means any person
or group of persons authorized by the FCC to transmit specialized multi -channel programming to
subscriber -selected locations.
W. "Multi -channel programming service" or "Multi -channel service" means:
1. the one-way transmission to subscribers of video programming, or other
programming service, irrespective of the technology employed and subject to federal and state
preemption or limitation; and
2. subscriber interaction, if any, which is required for the selection of such video
programming or other programming service.
WW. "Multi -channel system" means:
1. a facility consisting of closed transmission paths and associated signal generation
reception, and control equipment; or
2. a facility consisting of infra -red transmission or point-to-point transmission (as
permitted by law); or
3. any functional equivalent that is designed to provide multi -channel service which
includes video, voice, or data programming to multiple subscribers within the City. However,
such term does not include the following:
4. a facility that serves only to re -transmit the television signals of one (1) or more
broadcast stations; or
5. a facility that serves only subscribers in one (1) or more multi -unit dwellings
under common ownership, control, or management unless such facility or facilities uses any
public -rights -of -way; or
6. a facility of a common carrier which is subject, in whole, or in part, to the
provision of Title II of the Communication Act of 1934, except that such facility shall be
considered a multi -channel system (other than for purposes of Section 621 (c) of the Cable
Act --codified at 47 USC 541) to the extent such facility is used in the transmission of video,
voice, or data programming or service directly to subscribers; or
7. any facilities of any electric utility used solely for operating its electric utility.
XX. "Ordinance" means the Multi -Channel Service Providers Regulatory Ordinance for
the City of La Quinta, California.
YY. "Other programming service" means information that an MCS provider
(specifically including a cable operator) makes available to all subscribers generally.
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ZZ. "Pay -per -view" or "Premium channel" means the delivery over the multi -channel
system of audio and/or video signals for a rate or amount (over and above the rate for basic
service) on a per event, or per program, or per channel basis.
AAA. "PEG" means public, educational, and governmental.
BBB. "Person" means any individual, corporation, estate, trust, partnership, association
of two (2) or more persons having a joint common interest, joint stock company, or
governmental entity.
CCC. "Private communications network", or "PCN", or "Private communications
system" means any ancillary or aligned component of an MCS provider's system consisting of
communications lines, cables, equipment or facilities which are used to provide
telecommunications service that in any manner uses or occupies the streets, easements, public
ways, or rights of way within the City (as annexed). However, "private communications
network" does not include any part of a State or FCC licensed local government local exchange
telephone company, or any part of a Federal, State, County, or local government owned
telecommunications system.
DDD. "Proposed abandonment of multi -channel service" or "Proposed withdrawal of
multi -channel service" or "Proposed cessation of multi -channel service" means the imminent, or
expected (either voluntary or involuntary) disruption, discontinuance, desertion, or removal of an
MCS provider's operation and provision of multi -channel service from all, or part, of the City
for a projected period exceeding four (4) months in duration.
EEE. "Public, educational or governmental access facilities" mean:
1. Channel capacity designated for noncommercial public, educational or
governmental use; and
2. Facilities and equipment for the use of such channel capacity.
FFF. "Public way" means any public street, public way, public place, or rights -of -way,
now laid out or dedicated, and the space on, above or below it, and all extensions thereof, and
additions thereto, in the area served by the MCS provider.
GGG. "Rate" means the periodic price paid by a subscriber for the receipt of any
multi -channel service provided for by an MCS provider.
HHH. "Revocation," "Termination," or "Non -renewal," means an official act by the
Council/franchising authority that removes, repeals, or rescinds previously approved authorization
for a licensed or franchised MCS provider to operate a multi -channel system within the City.
III. "Service cluster" means the grouping, aligning, or packaging of one (1) or more
multi -channel programming services by type or category (such as sports and/or news), or by rate,
or by some other identifiable method, and charging a separate price or rate for each service
cluster. This definition is not intended to relate to issues of rate regulation under the Federal
Cable Act.
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JJJ. "Service outage" for purposes of credit means the loss of picture or sound on all
basic subscriber channels, or one (1) or more auxiliary programming components (including tiers
and clusters). For purposes of response to a service call, a "service outage" means a loss of
picture or sound or other service provided by an MCS provider which is not caused by the
failure or malfunction of a subscriber's television receiver or monitor, or by the misfeasance or
malfeasance of the subscriber.
KKK. "Service tier" means a category of multi -channel service or other programming
service provided by an MCS provider, and for which a separate rate is charged by an MCS
provider.
LLL. "SMATV" means Satellite Master Antenna Television.
MMM. "SMATV operator" or "Satellite Master Antenna Television operator" means
any person or group of persons who:
1. provides multi -channel service over an SMATV system; or
2. otherwise controls or is responsible for, through any arrangement, the
management of a SMATV system.
NNN. "SMATV system" means a private multi -channel system not crossing any public
rights -of -way and which is located on private property, and serving private dwellings.
000. "State" means the State of California.
PPP. "Street" means the surface of, and the space above and below a public street (or
any path or thoroughfare designated for vehicular and/or pedestrian traffic), or other easement
now or hereafter held by the City (including any street, as defined, which is acquired by eminent
domain) for the purpose of public travel.
QQQ. "Subscriber" means a person lawfully receiving multi -channel service delivered by
an MCS provider.
RRR. "USC" means United States Code.
SSS. "User" means a person or organization utilizing a multi -channel system and/or its
equipment for purposes of production and/or transmission of material, as contrasted with receipt
thereof in a subscriber capacity.
TTT. "Video programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
5.10.060 Administration; Delegation of Powers and Authority.
A. The Council/franchising authority is hereby designated the officer of the City that
is responsible for the continuing administration of this ordinance, and matters related to
multi -channel service including cable service, cable systems, and cable operators.
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B. Unless prohibited by federal, State or local law the Council/franchising authority
may further delegate its powers and authority to a duly authorized representative, with respect to
administering this ordinance or an applicable franchise agreement.
C. However, the Council/franchising authority may never delegate its franchising or
revocation power to another person or representative. Moreover, while the Council/franchising
authority may use an outside consultant to review any rates that are subject to the City's review
under the Cable Act, the Council/franchising authority nonetheless may not delegate its ultimate
rate -making power to another person or representative.
5.10.070 Applicability of this Ordinance to an MCS Provider.
A. With respect to provisions classified as consumer protection and customer service,
and specifically those Sections numbered 37 through 75 that are contained within this ordinance,
such Sections and provisions shall be applicable to an MCS provider unless such MCS provider
is either exempted from the ordinance (or any applicable provision), or granted relief from any
applicable provision of the ordinance. Moreover, such MCS provider shall be expected to
comply with, and abide by, applicable consumer protection and customer service provisions no
later than one hundred eighty (180) days after the effective date of this ordinance.
B. With respect to all other provisions contained within this ordinance, those
provisions shall be applicable to an MCS provider unless such MCS provider is either exempted
from the ordinance (or any applicable provision), or granted relief from any applicable provision
of the ordinance. Moreover, such MCS provider shall be expected to comply with, and abide
by, those Sections and provisions no later than two hundred seventy (270) days after the effective
date of this ordinance, unless a different compliance date is given or noted (including a different
date noted in a franchise agreement).
C. However, subsection (A), and subsection (B) of this Section are not intended to
repeal, and do not have the effect of repealing, any current franchise agreement that presently
exists between the Council/franchising authority, and a franchised MCS provider.
D. As a result of subsection (C) of this Section, the provisions of this ordinance shall
have no effect on an existing franchise agreement until the expiration of such existing
agreement, or until one of the following occurs:
1. prior to the franchise agreement expiration date, the Council/franchising authority
and the affected franchised MCS provider either execute an amended franchise agreement in
which both parties agree to be bound by the terms of this ordinance (except as specifically
granted relief, exemption, clarification, or comparable policy status); or
2. prior to the franchise agreement expiration date, the Council/franchising authority
and the affected franchised MCS provider execute a franchise renewal agreement; or
3. both parties agree to a specific date for expiration of said existing franchise, which
in fact is prior to the present franchise expiration date.
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5.10.080 Exemption from this Ordinance for Certain MCS Providers.
A. MCS providers who are exempted from complying with the provisions of this
ordinance are as follows:
an MCS provider that is exempted from this ordinance as a result of federal or
state law;
2. an MCS provider that is exempted from this ordinance as a result of an applicable
FCC, ruling; or
3. an MCS provider that is exempted from this ordinance as a result of an applicable
judicial ruling, from which no subsequent appeal can be taken.
B. It is expressly understood that an exempted MCS provider remains exempted only
as long as it meets one (1) or more of the criteria of this particular Section.
C. A qualified MCS provider is exempt only from this ordinance. Consequently,
such an exempted MCS provider shall abide by, and comply with, any other applicable local,
State, or Federal laws and regulations, including any applicable Federal, or State consumer
protection, or customer service laws and regulations.
5.10.090 MCS Providers Seeking Relief from this Ordinance.
A. Any MCS provider affected by this ordinance may file a written petition, at any
time, with the Council/franchising authority seeking relief from one or more provisions of this
ordinance. An MCS provider may specifically request the exemption from, or delay in
implementation (as to the petitioning MCS provider only), of one or more provisions of this
ordinance. Also, the MCS provider may request that a specific provision of the ordinance apply
to such MCS provider for a specified length of time or duration. The petition shall set forth the
relief requested and the basis thereof with such supporting information and material as may be
applicable.
B. In order to receive any relief from one (1) or more of the provisions of this
ordinance, an MCS provider must reasonably demonstrate to the Council/franchising authority
that at least one (1) of the following facts exist:
1. where applicable, that the provision in question materially affects, and is in
conflict with, an expressed right that is specifically noted in an existing franchise agreement (but
only for the term of the existing franchise) --(this provision covers situations where an MCS
provider classified as a cable operator seeks, and is granted, modification of an existing franchise
agreement under Section 625 of the Cable Act (codified at 47 USC 545)); or
--- 2. that compliance with a particular provision and/or requirement will be
commercially impracticable for an MCS provider; or
3. that one (1) or more time frames listed in this ordinance are either impossible to
meet, or impractical to meet in light of the MCS provider's operational policy; or
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4. that the MCS provider has its own construction, maintenance, operation, or
customer service policy, which the Council/franchising authority deems comparable to, or
exceeding, any provision and/or requirement from which the MCS provider seeks relief; or
5. that the health, safety, and welfare interests of the City otherwise warrant the
granting of such relief.
C. The Council/franchising authority shall have the responsibility of determining
whether an MCS provider's construction, maintenance, operation, or customer service policy, is
comparable to, or exceeds, a similar provision in this ordinance.
D. As an alternative to seeking an exemption, or requesting relief, an MCS provider
may petition for clarification concerning the precise intent and effect that one (1) or more
provisions or sections of this ordinance have on the petitioning MCS provider.
E. In those instances in which an MCS provider submits a petition for relief or
clarification, in accordance with this Section, the Council/franchising authority reserves its right
to charge the petitioning MCS provider with the actual and reasonable costs for processing such a
petition, including costs incurred by outside consultants who are retained by the
Council/franchising authority to review an MCS provider's petition, and who provide a degree of
skill and experience not found within either the staff of the Council/franchising authority or the
City.
F. In those instances where the Council/franchising authority, provides clarification
for a provision of this ordinance, or grants an exemption or relief to a franchised MCS provider,
or deems a franchised MCS provider's operational policy to be comparable to an ordinance
provision, then the franchise agreement (initial, existing, or renewal) shall be amended within
sixty (60) days to reflect the exact extent of such clarification, exemption and/or relief. It should
be specifically noted that the benefit of such exemption, relief, clarification, or comparable policy
extends only to the MCS provider granted such exemption, relief, clarification, or comparable
policy.
5.10.100 Failure of the Council/Franchising Authority to Enforce this
Ordinance.
An MCS provider shall not be excused from complying with any of the requirements of
this ordinance, or any subsequently adopted amendments to this ordinance, by any failure of the
Council/franchising authority on any one (1) or more occasions to seek, or insist upon,
compliance with such requirements or provisions.
5.10.110 MCS Providers or their Assignees Subject to Present and Future
Ordinances and/or Resolutions.
A. Any MCS provider, its assignee, or transferee shall be subject to, and expected to
comply with, all applicable ordinances and/or resolutions now or hereafter adopted and in effect
within the City, including this ordinance, to the extent that said MCS provider has not received
an exemption or relief from said ordinance(s) and/or resolution(s).
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B. Any MCS provider, its assignee, or transferee shall be subject to, and expected to
comply with, all Federal and State laws, and with all rules and regulations issued by all
applicable regulatory agencies (including where applicable, the FCC) now or hereafter in
existence. However, if the City amends this ordinance, and the amending of such ordinance
would have the effect of either unilaterally imposing significant new capital costs on the MCS
provider, or unilaterally changing the process for default and/or revocation of an MCS provider's
franchise, then such amendment of this ordinance shall have no effect on the affected MCS
provider. (If there is evidence satisfactory to the City as to whether an amendment imposes
significant new capital costs then such costs shall require a renegotiation of the franchise as to
that issue.
C. Any MCS provider, its assignee, or transferee shall be subject to all lawful
exercise of the City's police power.
D. With respect to future ordinances and/or resolutions noted in this Section, nothing
contained herein prevents an MCS provider from exercising any, and all, of its administrative,
and legal rights in order to challenge the constitutionality, applicability, and enforceability of said
future ordinances and/or resolutions.
5.10.120 Repeal of Prior Inconsistent Resolutions, Ordinances, and Local Laws.
A. Except as provided in subsection (B) of this Section, any prior resolution,
ordinance, or local law, including but not limited to Chapter 5.10 of the La Quinta Municipal
Code, which in part, or in whole, is directly inconsistent with this ordinance is hereby repealed
to the extent of the inconsistency.
B. Subsection (A) of this Section is not intended to repeal, and does not have the
effect of repealing, any current franchising ordinance or franchise agreement that presently exists
between the Council/franchising authority and a franchised MCS provider.
5.10.130 Resolution of Inconsistencies with Federal or State Rules, Regulations
or Laws.
A. In any case of an actual inconsistency between any provision or section of this
ordinance, and any provision or section of a Federal or State rule, regulation, or law, then the
Federal or State rule, regulation, or law shall not only supersede the effect of the ordinance, but
also control in any local application, unless such Federal or State rule, regulation or law does not
pre-empt, supersede, or make invalid the inconsistency.
B. The above subsection specifically includes any situation wherein an applicable
Federal or State judicial decision creates an actual inconsistency with any provision or section of
this ordinance. In such a situation, the Federal or State judicial decision shall not only
supersede the effect of the ordinance, but also control in any local application, unless such
Federal or State judicial decision does not pre-empt, supersede, or make invalid the
inconsistency.
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5.10.140 Resolution of Conflicts Between this Ordinance and a Subsequent
Franchise Agreement.
A. Where there is a conflict (actual or apparent) between this ordinance and a
subsequent franchise agreement, this ordinance shall control, and prevail, unless administratively,
or judicially determined invalid, unenforceable, or unconstitutional, or unless the provisions of
subsection (B) of this Section apply to the MCS provider and its franchise agreement.
B. Where a franchised MCS provider receives an exemption, relief, clarification from
one (1) or more provisions or Section of this ordinance, or has one (1) or more of its policies
deemed comparable to a provision contained in this ordinance, the franchise agreement shall
specifically note such exemption, relief, clarification, or comparable policy. As a result, to the
extent that such an exemption, relief, clarification, or comparable policy is inconsistent with a
provision contained in this ordinance, then the specifically noted exemption, relief, clarification,
or comparable policy language contained in the franchise agreement shall control.
5.10.150 Penalties for Violation of this Ordinance; Assessed Charges or
Liquidated Damages for Breach of Franchise Agreement.
A. To the extent permitted by local and state law, the Council/franchising authority
reserves the authority to institute a penalties schedule for violations of this ordinance. Where
appropriate and/or applicable, violations of this ordinance shall be handled in the manner
prescribed by either state or local law.
B. In instances where a franchise agreement provides for assessed charges or
liquidated damages for the breach or violation of that franchise agreement, then such assessed
charges or liquidated damages shall operate as a separate and independent remedy for the City to
pursue.
C. Notwithstanding the other provisions in this Section, an MCS provider shall not be
subject to such provisions in instances of force majeure (as outlined elsewhere in this ordinance),
and/or a "technical" violation of the ordinance, or where applicable, a "technical" breach of a
franchise agreement (as outlined elsewhere in this ordinance).
D. Notwithstanding the other provisions in this Section, a franchised MCS provider
shall be subject to possible default and/or revocation for cause as set forth in this ordinance.
5.10.160 Effect of "Technical" Violation of Ordinance or Franchise Agreement.
Notwithstanding the provisions contained in Section 15 of this ordinance, an MCS
provider shall not be subject penalties, fines, forfeitures or (where applicable) revocation of a
franchise for a nonmaterial or so-called "technical" violation of this ordinance or (where
applicable) a "technical" breach of a franchise agreement. For purposes of this ordinance,
"technical" violations or breaches include the following:
1. instances or circumstances in which a violation of this ordinance or (where
applicable) a franchise agreement by an MCS provider was a good faith error that resulted in no
or minimal negative impacts on the customers within the City; or
PUBL:15551_311871 B2588.0 A-14 09/27/94
2. instances or circumstances that existed and were reasonably beyond the control of
an MCS provider, and that precipitated a violation of this ordinance or (where applicable)
franchise agreement, or prevented an MCS provider from complying with this ordinance or
(where applicable) franchise agreement.
5.10.170 Force Majeure.
A. Notwithstanding the other provisions of this ordinance (except as noted in
subsection (B) of this Section), an MCS provider shall not be held in violation, integral or
material breach, default, or non-compliance of this ordinance or a franchise agreement, nor suffer
any enforcement or penalty relating thereto (including where applicable, termination, cancellation
or revocation of a franchise and/or license), where such violation, breach, default or
non-compliance occurred, and/or was caused by the force of an earthquake, flood, tidal wave,
hurricane, or similar act of nature, or other event that is reasonably beyond an MCS provider's
ability to anticipate and/or control. Force majeure also covers strikes, riots, wars, and armed
insurrections. Force majeure also covers inability to obtain or delay in obtaining delivery of
equipment, delays in the issuance of permits and authorizations for which there has been timely
application, work delays caused by waiting for utility providers to service or monitor their own
utility poles on which an MCS provider's cable and/or equipment is attached.
B. Even in the case of a force majeure situation, a customer may be entitled to a
refund or credit if the customer sustains a multi -channel service outage for a period of time that
is in excess of those permitted under this ordinance.
5.10.180 Notices.
A. Both the Council/franchising authority and each MCS provider shall provide the
other party with the name and address of the contact designated to receive notices, filings,
reports, records, documents, and other correspondence. All notices shall be delivered to each
party's contact by certified mail, return receipt requested, personal service with a signed receipt
of delivery, overnight with receipt verification or facsimile. All other filings, reports, records,
documents, and other correspondence may be delivered by any permissible means including,
but not limited to: facsimile transmission ("faxing"); personal service; overnight mail or package
delivery; or delivery via cable. The delivery of all notices, reports, records, and other
correspondence shall be deemed to have occurred at the time of receipt (unless otherwise
designated by State law).
B. If the MCS provider is required to maintain a franchise, then the designation of
such contact person for notice purposes, may be contained within a franchise agreement.
5.10.190. Indemnity.
A. To the extent permitted by law, an MCS provider shall at all times defend,
indemnify, protect, save harmless, and exempt the City, the City Council, the Mayor, their
officers, agents, servants, and employees, from any, and all, penalty, damage, or charges arising
out of claims, suits, demands, causes of action, or award of damages whether compensatory or
punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are
caused by, the construction, erection, location, products performance, operation, maintenance,
PUBL:15551_311871 B2588.0 A-15 09/27/94
repair, installation, replacement, removal or restoration of the multi -channel system within the
City by an act or omission of an MCS provider, its agents or employees, contractors,
subcontractors, independent contractors, or implied or authorized representatives. With respect
to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants'
fees, and expert witness fees are included as those costs which may be recovered by the
Council/franchising authority.
B. The City, City Council, and the Mayor specifically reserve the right to retain
counsel of their own choice at their own expense.
C. If an MCS provider obtains counsel for the City, City Council, and the Mayor,
then any one of them shall have the right to approve counsel. However, neither the City, City
Council, nor the Mayor shall unreasonably withhold its approval of counsel.
D. With respect to an MCS provider's own defense of such actions noted in this
Section, it is understood, that such MCS provider reserves the right to select and retain, without
the City, City Council, or Mayor's approval, counsel of the MCS provider's choice, at such
MCS provider's expense.
5.10.200 Liability Insurance.
A. An MCS provider shall secure and maintain, for as long as it provides
multi -channel service to subscribers, public liability, property damage insurance, and umbrella
coverage in at least the following amounts:
1. Public liability: $1,000,000.00 per person/per occurrence;
2. Property damage: $1,000,000.00 per any one (1) claim;
3. Umbrella liability: $5,000,000.00.
B. An MCS provider's public and personal liability and property damage insurance
policy shall specifically include the City, the City Council, and the Mayor as additional named
insureds.
C. The public and personal liability and property damage insurance policy shall be
issued by an agent or representative of an insurance company licensed to do business in the State,
and which has one (1) of the three highest or best ratings from the Alfred M. Best Company.
D. The public liability and property damage insurance policy shall contain an
endorsement obligating the insurance company to furnish the Council/franchising authority with
at least thirty (30) days written notice in advance of the cancellation of the insurance.
E. Renewal or replacement policies or certificates shall be delivered to the
Council/franchising authority at least fifteen (15) days before the expiration of the insurance
which such policies are to renew or replace.
PUBL:15551_311871 B2588.0 A-16 09/27/94
F. Before a multi -channel system provides multi -channel service to subscribers, the
MCS provider shall deliver the policies or certificates representing the insurance to the
Council/franchising authority.
G. If the State permits an MCS provider to self -insure, then the MCS provider may
exercise its right to self -insure, so as long as the minimum amounts of insurance coverage
outlined in this Section are met and maintained for the entire period that the affected MCS
provider is self -insured.
5.10.210 Performance and Construction/Completion Bond.
A. An MCS provider shall furnish to the Council/franchising authority, a
performance bond or security bond executed by a surety licensed to do business in this State in
an amount totalling at least one hundred thousand dollars ($100,000.00). The purpose of the
performance bond is to ensure performance of any requirements imposed by this ordinance on an
MCS provider, or imposed on an MCS provider by virtue of its franchise agreement. Further,
the purpose is to guarantee that should the MCS provider not fulfill any obligations imposed by
this ordinance (or where applicable, a franchise agreement), then the surety will make whole (to
the extent of the policy) any monetary losses incurred by the City.
B. An MCS provider shall furnish to the Council/franchising authority, a
construction/completion bond prior to the time it commences a construction, upgrade, rebuild, or
repair/maintenance project that has a capital construction cost or outlay exceeding one hundred
thousand dollars thousand dollars ($100,000.00) in value. The amount of the bond shall equal
one hundred percent (100%) of the projected capital construction cost or outlay.
C. The construction/completion bond or security bond shall specifically guarantee that
an MCS provider will timely abide by its construction, upgrade, rebuild, or repair/maintenance
schedule for the multi -channel system and/or any timetable for technical and service
improvements or additions to the multi -channel system as may be committed to, or agreed upon,
from time to time, by the Council/franchising authority and MCS provider.
D. If the Council/franchising authority draws on a performance or completion bond
or cash deposit as a result of an MCS provider's failure to timely discharge its obligations, or
failure to construct and activate the multi -channel system, or failure to complete a multi -channel
system upgrade or rebuild or repair/maintenance, then the MCS provider shall be required to
replenish within thirty (30) days the completion and performance bond or security bond to the
minimal level required by the Council/franchising authority.
E. In the event that the Council/franchising authority makes a formal determination
that based upon the MCS provider's past performance (such as a documented history of repeated
or multiple franchise violations), or increased cost of a project (greater than 50% of the original
estimated cost), the Council/franchising authority (unless pre-empted by the State) may increase
the required amount of either the performance or the construction/completion bond.
F. The performance bond, security bond or construction/completion bond, shall be in
force at all times unless relief is granted or a reduction schedule is detailed in an separate
agreement, executed between the MCS provider and the Council/franchising authority.
PUBL:15551311871 B2588.0 A-17 09/27/94
G. In lieu of a performance bond, and construction/completion bond, the
Council/franchising authority may accept a written guarantee of an MCS provider pledging the
full faith and credit of the affected MCS provider should there be a breach in a material franchise
term, or failure to meet any construction schedule.
5.10.220 Retention and Submission of Reports and Records.
A. An MCS provider shall maintain and retain such records and reports reasonably
necessary for the Council/franchising authority to determine compliance with the obligations
imposed on it by this ordinance, and to determine the MCS provider's legal, technical, financial,
and character qualifications for a minimum of three (3) years.
B. Upon request, an MCS provider shall submit to the Council/franchising authority
a list of files, reports, records, data or other information that the MCS provider periodically,
customarily, and/or regularly files with the FCC, or another Federal or State agency. For any
other filing that an MCS provider files with another Federal or State agency (and that has a direct
impact on the operation of the MCS provider's multi -channel system), then the MCS provider
shall notify the Council/franchising authority of such filing within sixty (60) days of said filing.
Said notice shall inform the Council/franchising authority of the nature and scope of the filing, as
well as, the recipient (name, address, department, division, and phone number) of the filing.
For any matter related to the administration and enforcement of an MCS provider agreement, the
Council/franchising authority may specifically request that it be provided with any, or all, listed
reports, records, data, or other information that were originally filed with the FCC, the Securities
and Exchange Commission (SEC) or another Federal or State agency. However, unless
specifically authorized by the State, an MCS provider shall not be required to provide the
Council/franchising authority any State or Federal tax returns, or any documents (inclusive of all
above -referenced categories) exempted under State or Federal privacy laws, including Section
631 of the Cable Act (codified at 47 USC 551).
C. In addition to the requirements noted in subsection (B) of this Section, an MCS
provider shall timely submit those reports, statements, and logs required by this ordinance,
including, but not limited to, the following:
1. a periodic gross revenue statement in the manner set forth in this ordinance;
2. a periodic certification indicating that the answering of phones is meeting the
specifications listed in this ordinance;
3. evidence of the satisfactory resolution of problems and complaints in the manner
set forth in this ordinance;
4. preventive maintenance reports in the manner set forth in this ordinance;
5. where applicable, FCC Form 393 (or equivalent) rate worksheets;
6. where applicable, FCC Form 394 (or equivalent) concerning assignment or
transfer of a franchised multi -channel system classified as a franchised cable system;
PUBL:15551_31 1871 B2588.0 A-1 g 09/27/94
7. where applicable, FCC Form 395-A (or equivalent) concerning equal employment
opportunity (EEO) and fair contracting policies; and
8. any other reports or information required by another Section of this ordinance, or
by the Council/franchising authority which are necessary to protect the health, safety, and welfare
of the citizens of the City.
5.10.230 Inspection and Review of Books, Records, and Other Data.
A. An MCS provider shall keep complete and accurate books of accounts, and
records of the business and operations under, and in connection with, the MCS system.
B. The Council/franchising authority shall have the right to review (either by mail or
at the MCS provider's local office) all records needed for the administration and enforcement of
this ordinance and/or franchise agreement on seven (7) days written request, unless specifically
exempted by the Council/franchising authority. Such review shall occur within the MCS
provider's regular office hours unless a different time is otherwise mutually agreed upon or
administratively or judicially ordered.
C. The Council/franchising authority shall have the right to hire, at its own expense,
an independent certified public accountant, or other business or financial expert, to review the
books and records of an MCS provider. If after a financial audit it is determined that the MCS
provider has underpaid amounts owed to the City by an amount exceeding 1 % of what was
actually paid, then the Council/franchising authority may require the MCS provider to reimburse
the City for the actual cost of the audit.
D. A false entry into the books and/or records of an MCS provider, made by an
MCS provider, of a material fact shall constitute a material violation of this ordinance.
However, an erroneous entry, made in good faith, shall not constitute a material violation of this
ordinance.
E. An MCS provider, shall provide to the City upon its request complete and
accurate books and records of the key aspects of the multi -channel system's operation for at least
the preceding three (3) years in such a manner that all matters pertaining to the City can be easily
produced and/or verified at the request of the Council/franchising authority. Also, the MCS
provider shall provide upon request, any other applicable records and information that may be
required by any other Federal or State agency having jurisdiction over one or more classes of
MCS providers.
5.10.240 Applicability of State Consumer Sales Practices Laws.
In addition to any, and all, requirements of this ordinance, each and every MCS provider
shall comply with, and abide by, all applicable provisions of any State law concerning consumer
sales practices.
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5.10.250 Applicability of State Video Customer Service Act.
In addition to any, and all, requirements of this ordinance, each and every MCS provider
shall comply with, and abide by, all applicable provisions of the State's Video Customer Service
Act (referenced at Section 53088 of the State Government Code).
5.10.260 Notification of Basic MCS Provider and Franchising Authority
Information.
A. Consistent with the State Video Customer Service Act, an MCS provider must
provide a customer with a written "Notice" of the MCS provider's programming, service
policies, and name and address of the local franchising authority.
B. Consistent with the State Video Customer Service Act, the "Notice" shall be
provided at the time of initial installation. Thereafter, a subscriber shall be provided with a
written "Notice" at least once every twelve (12) months. If however, an MCS provider amends,
repeals, adds, deletes, modifies, or makes other changes to any customer service practice that is
required in this ordinance, then said MCS provider shall provide a subscriber with such written
notification prior to the effective date of such amendment, repeal, addition, deletion,
modification, or other change.
C. Unless expressly prohibited by the State, an MCS provider may provide said
"Notice" over the MCS system, on a channel clearly designated for the dissemination of such
information --(such a channel need not be solely designated for dissemination of such information,
and may, in fact, be used at other times for any lawful purpose).
D. If the "Notice" is provided over the MCS system on a channel clearly designated
for the dissemination of such information (as referenced in subsection (A) of this Section), such
"Notice" shall be cablecast at least three times every week prior to the effective date of a change
in customer service practice. In such case, and to maximize the opportunity that all subscribers
will read the "Notice", such "Notice" shall be cablecast at least once between midnight and eight
(8) a.m., once between eight (8) a.m. and four (4) p.m., and once between four (4) p.m. and
midnight.
5.10.270 Minimum Contents of Basic Notice.
A. Consistent with, in addition and supplemental to the "Notice" required by the State
Video Customer Service Act, such "Notice" shall contain, at a minimum, the following:
1. an up-to-date listing of the specific multi -channel services provided --clearly
indicating and isolating the basic, premium, and informational services offered, as well as, the
service tiers or service clusters offered;
2. notification of a subscriber's ability to purchase or lease, from the MCS provider,
a lock box, parental control mechanism, or other device which will prevent the viewing of a
particular multi -channel service during a period selected by the subscriber;
PVBL:15551_311871 B2588.0 A-20 09/27/94
3. any, and all, consumer electronics equipment compatibility notifications required
by either Federal law, or FCC rules and regulations;
4. a comprehensive listing and explanation of all rates and charges (including security
deposits, if any);
5. if service clustering is available, then a description and explanation of any
penalties, credits, restrictions, or other pertinent information;
6. a comprehensive listing and explanation of all billing options available (such as
monthly, quarterly, or yearly, and/or discounts for pre -payments);
7. the customer service office hours and telephone number(s) of an MCS provider;
8. the billing practices of an MCS provider;
9. the specific customer complaint/inquiry resolution policy;
10. the method of securing a voluntary disconnection;
11. rules relating to both connections, and involuntary disconnections;
12. the extent of the credit/refund policy;
13. the equipment use and return policy together with any required security deposits;
and
14. the additional rights of blind, hearing -impaired or ambulatory -impaired customers
in a manner consistent with the specific policy set forth in this ordinance.
B. The "Notice" may be delivered to a subscriber via an insert in the subscriber's
periodic invoice, through a special mailing, or over an MCS channel clearly designated for the
dissemination of such information. If the MCS provider chooses to avail itself of the opportunity
to provide the "Notice" over the MCS system, on a channel clearly designated for the
dissemination of such information, such "Notice" shall be cablecast, at least three times for a
week.
5.10.280 Billing Credit or Refunds for Service Outages, Interruptions;
Substandard Signal or Picture Quality or Unsolicited Service.
A. An MCS provider shall provide a subscriber with credit (or where applicable a
refund) for one day's service for a service outage or interruption of a separately billed service
tier or service cluster that exceeds four (4) hours in length. For a service outage or interruption
- of a pay -per -view event that exceeds more than one -quarter of the scheduled or projected length
of the pay -per -view event, or two (2) hours whichever is shorter, then the MCS provider shall
provide a subscriber with credit for the full amount of the pay -per -view event.
PUBL:15551_311871 B2588.0 A-21 09/27/94
B. Force majeure situations do not relieve an MCS provider from providing credit or
refunds, if the force majeure service outage or interruption exceeds four (4) hours in length.
C. An MCS provider shall use its best efforts to automatically credit or refund any
affected subscriber in the case of a systemwide service outage that exceeds the time limits
referenced in subsection (A) or (B) of this Section. For purposes of this Section, a "system -wide
service outage" is a service outage that is caused by the same incident, and that affects three (3)
or more subscribers at the same time.
D. For non -systemwide service outages, a subscriber must first notify an MCS
provider of the service outage. For purposes of determining whether a credit or rebate is due,
the start of the non -systemwide service outage shall be from the time that the subscriber first
notifies the MCS provider of the service outage.
E. In the case of a charge for unsolicited service, an MCS provider shall provide a
subscriber with an adjustment or billing credit on the next available periodic invoice. Moreover,
in such a case, an MCS provider shall not consider a subscriber delinquent for failure to pay a
charge for unsolicited service.
5.10.290 Customer Service Hours; Capabilities of Customer Service Office; and
Telephones.
A. Consistent with, in addition and supplemental to the requirements contained in the
State Video Customer Services Act, an MCS provider shall maintain a customer service office
which is-
1. located within the city limits of the City, or no further than one (1) mile outside of
the city limits of the City;
2. complemented with adequate parking;
3. accessible to the physically and ambulatory -impaired;
4. adequately staffed during business hours to handle the flow of customers; and
5. equipped with up-to-date and properly functioning computer and telephonic
equipment, so that all customers may be properly and promptly served.
B. The customer service office shall be open at least forty (40) hours per week
(exclusive of holidays).
C. Within the forty (40) hours per week that a customer service office must be open,
an MCS provider must provide office hours either on at least two (2) evenings (after 5 p.m.), or
on Saturdays or Sundays (if not prohibited by State law).
D. The customer service office shall have an adequate and knowledgeable staff in
order to handle the vast majority of customer service inquiries, specifically including, but not
PUBL:15551_311971B2588.0 A-22 09/27/94
limited to: billing inquiries, refunds, credits, service outages, equipment service and repair,
payment of bills and other charges, and inquiries from disabled or physically -impaired customers.
E. An MCS provider may install an automated (audio or video) customer assistance
device or machine which can handle various types of customer inquiries, so long as the caller has
the option and ability at all times to speak with a live representative of the MCS provider.
F. Neither the presence of an after hours depository, nor automated customer service
device, nor interactive customer service channel, relieves an MCS provider from maintaining the
minimal required number of office hours, or adequate CSR staff to handle the service inquiries.
G. An MCS provider shall maintain at least one (1) toll -free and/or local telephone
number to accommodate both normal business inquiries, and to facilitate calls concerning repair
of equipment, service outages, and extended interruption of service. During any hours that the
customer service office is open, the MCS provider must have, or make available, in-house
personnel to address a customer's inquiries. During other hours, a telephone may be manned by
an automatic answering device, provided that in the case of a service outage the use of an
answering device or answering service still results in an initial phone response by the MCS
provider within sixty (60) minutes, in order to at least determine the extent of the outages,
interruption or other customer -related concern.
H. A MCS provider shall have adequate staff and/or extension lines (except during
special marketing promotion periods, peak billing cycles, and service outages) in order to handle
calls and inquiries directed to the general information number, so that the following standards
may be met:
1. Ninety-five percent (95 %) of all customer calls received in any sixty (60) day
period shall be answered and responded to within four (4) minutes by a representative of the
MCS provider, or by a device that is capable of complaint/inquiry resolution; and
2. The rate of abandoned calls shall be less than five percent (5%) over any sixty
(60) day period of time. "Abandoned calls" shall not include calls in which the caller hangs up
within forty-five (45) seconds of making the call.
I. With respect to the standards listed in subsection (K) of this Section, it shall be the
MCS provider's responsibility to quarterly certify to the Council/franchising authority that the
affected MCS provider is meeting the minimal standards.
5.10.300 MCS Provider CSR and Service Technician Personnel.
A. An MCS provider shall upon request certify to the Council/franchising authority
that each CSR has taken and passed an MCS provider -implemented course or on -going class
designed to train CSRs to handle their jobs in a courteous, efficient, knowledgeable and
responsive manner. Also, the course or class shall be designed to provide continuing education to
CSRs concerning changes in Federal, State, or local law, as well as, changes in MCS provider
customer service policies and practices.
PUBL:15551311871 B2588.0 A-23 09/27/94
B. An MCS provider shall annually certify to the Council/franchising authority that
each service technician has taken and passed an MCS provider -implemented course or on -going
class designed to train service technicians to handle their jobs in a courteous, efficient, and
responsive manner. Also, the course or class shall be designed to provide continuing education to
service technicians in changes in technology, repair/maintenance procedures and related matters.
C. An MCS provider shall maintain records on the certification of every CSR and
service technician and shall provide such certification records to the Council/franchising authority
upon seven (7) days request.
D. Every CSR and service technician of an MCS provider shall note his or her name
(as well as badge or identification number if one is supplied) on each service request or work
order that is furnished to a customer. Further, every CSR and service technician of an MCS
provider shall identify him or herself to a customer at the outset of a phone conference, or
service call to the residence or business.
E. The provisions and requirements of this Section extend to all full-time and
part-time employees, as well as, any subcontractors and independent contractors who perform the
tasks of CSRs or service technicians.
5.10.310 Special Service Requirements for Blind, Hearing -Impaired, or
Ambulatory -Impaired Customers.
The MCS provider shall comply with any requirement of Federal, or State Law, including
but not limited to, any requirements under the Americans with Disabilities Act.
5.10.320 Preferential or Discriminatory Practices Prohibited.
A. An MCS provider shall not, as to rules, regulations, rates, charges, provision of
service, or use of a provider's facilities and equipment, make, allow, or grant any undue
preference or advantage to any person, nor subject any person to prejudice or disadvantage on
the basis of age, race, creed, color, sex, national origin, handicap, religious affiliation or location
of residence.
B. Consistent with Section 621 (a) (3) of the Cable Act (codified at 47 USC 541 (a)
(3)), MCS providers classified as cable operators shall not deny cable service, or the extension of
cable service, to any group of potential residential cable subscribers because of the income of the
residents of the local area in which such group resides.
C. Except during a switch -over to an upgraded or rebuilt multi -channel system, an
MCS provider shall not provide an unequal number of multi -channel services to subscribers
within the City.
D. Subsection (A) of this Section, however, does not prohibit an MCS provider from
offering a promotional or incentive discount rate or charge as long as the rate or charge does not
exceed three hundred seventy (370) days in length. This subsection does not prohibit an MCS
provider from offering special incentive rates such as one (1) month basic service free, if twelve
PUBL:15551_3 1 187 1 B2588.0 A-24 09/27/94
(12) months of basic service are paid in one (1) payment, or within a certain time frame, or
similar types of pre -payment discounts.
E. Subsection (A) of this Section, also does not prohibit an MCS provider from
denying service based on location of residence, if that residence is outside the parameters for line
extension as detailed in a franchise agreement (if applicable).
F. Subsection (A) of this Section, also does not prohibit an MCS provider from
denying service to a subscriber who is delinquent in the payment of any periodic service, or
special service bill, so long as the requirements for disconnection (as outlined in this ordinance)
have been satisfied.
G. Subsection (A) and (C) of this Section do not prohibit an MCS provider from
making agreements or entering into multi -channel service agreements with multiple dwelling unit
owners (including hotel, motel, and mobile park owners) and commercial establishments to
provide multi -channel service under a bulk billing or other type of arrangement.
5.10.330 Use of Equipment, Return of Equipment, Security Deposits, and their
Return.
A. Prior to formally delivering any equipment, including auxiliary equipment to a
customer, an MCS provider shall have tested a representative sample (at least one percent (I %)
of such equipment to make sure that it is in proper working order.
B. An MCS provider shall deliver to a customer, printed instructions detailing the
proper use of rented, loaned, or purchased equipment. Unless required by another Section of
this ordinance, an MCS provider may comply with this Section by delivering the manufacturer's
instructions to a customer.
C. Under the circumstances provided in subsection (G) of this Section, an MCS
provider may seek a security deposit from a customer for use or rental of the MCS provider's
equipment, subject also to the provisions contained in subsection (F) of this Section.
D. An MCS provider shall comply with any, and all, applicable State rules
concerning the imposition, retention, and return of security deposits.
E. If the State is silent on the security deposit for a particular piece of equipment,
then the MCS provider shall be prohibited from charging any security deposit for equipment
which exceeds the replacement cost to the MCS provider.
F. As a matter of consumer protection, an MCS provider shall be prohibited from
charging any security deposit for multi -channel service which exceeds twice the basic monthly
rate for the subscriber selected service.
G. An MCS provider may charge an appropriate security deposit (consistent with
subsection (F) of this Section) in those instances where a customer is re -connected after an
involuntary disconnection for non-payment or prior history of unsatisfactory payment.
PUBL:15551_3 1 187 1 B2588.0 A-25 09/27/94
H. An MCS provider shall return a security deposit (together any interest earned)
after the equipment is satisfactorily returned.
I. A customer shall maintain any equipment rented or leased from an MCS provider
in good working order, and operate such equipment only in the manner specified by the MCS
provider or manufacturer of the equipment.
J. A customer shall totally and fully reimburse an MCS provider for any damage or
loss to an MCS provider's equipment that is due to the customer's failure to properly maintain
and operate such equipment.
K. A customer shall be relieved from any responsibility for reimbursing an MCS
provider for equipment which malfunctions or does not operate due to a hidden or latent defect in
the equipment, or for equipment which fails to operate, or improperly operates due to natural
occurrences conditioned by the normal wear and tear of such equipment.
5.10.340 Consumer Electronics Equipment Compatibility.
An MCS provider shall comply with any, and all, applicable Federal rules (including
those of the FCC) concerning consumer electronics equipment compatibility.
5.10.350 Service Inquiry Logs.
A. An MCS provider shall be required to keep and maintain service inquiry logs and
area outage records, subject to any limitations imposed by the by State or Federal law, including
(for MCS providers classified as cable operators) any subscriber privacy limitations imposed by
the Cable Act.
B. The purpose of the service inquiry logs and the area outage records is to assist the
Council/franchising authority in assessing (in the aggregate) the type, degree, and resolution of
customer service requests, inquiries, and complaints and system outages.
C. At a minimum, the service inquiry logs shall contain the following:
1. the time and date of initial receipt of any service request, inquiry, or complaint
together with the time and date of initial response to that service request, inquiry or complaint;
2. the nature of the service request, inquiry, or complaint;
3. the precise action taken by an MCS provider in order to resolve the service
inquiry, request, or complaint;
4. whether the service request, inquiry, or complaint was resolved by allowing a
credit or refund of some sort; and
5. the area, location, or quadrant of the City where the service request, inquiry, or
request was generated.
PUBL:15551_311871 B2588.0 A-26 09/27/94
D. At a minimum area outage records shall contain the following:
1. the date of onset of any system outage;
2. the area affected and approximate number of subscribers affected;
3. the date and time service was restored to the complete area;
4. the precise action taken to resolve outage problem; and
5. whether any credit or refunds were paid to any subscribers as a result of the
outage.
E. In addition to any other right of inspection that the Council/franchising authority
may possess, it shall have the right to review and inspect a compilation of such logs. However,
the Council/franchising authority shall not have the right of access, review, or inspection for any
service inquiry logs or any information contained within service inquiry logs that are otherwise
protected from access, review, or inspection by Federal or State law.
F. The term "service inquiry logs" as used in this Section shall not include data or
entries placed in logs related to scheduled installations.
G. An MCS provider shall have the option of submitting its own generated service
logs when such logs contain the essential information required in this Section.
5.10.360 Restoration of a Subscriber's Property.
A. If at any time an MCS provider (in furtherance of its right to construct, operate,
and maintain a multi -channel system), shall disturb the yard, residence, or other real or personal
property of a subscriber, such MCS provider shall ensure that the subscriber's yard, residence,
or other personal property is returned, replaced, and/or restored to a condition comparable to
that which existed prior to the commencement of the work.
B. The costs associated with both the disturbance and the return, replacement, and/or
restoration shall be borne by the MCS provider. This subsection also requires the MCS provider
to reimburse a subscriber or private property owner, for any actual physical damage caused by
the MCS provider, its subcontractor, or its independent contractor, in connection with the
disturbance of a subscriber or private property owner's property.
5.10.370 Service Inquiries, Requests, Complaints, and Response Times; Credits
and/or Rebates for Unexcused Cancellations of Service Calls.
A. Except in the case of force majeure, or an appointment scheduled with the mutual
consent of a subscriber, an MCS provider shall respond to the service inquiries, requests, and
complaints of subscribers, within such MCS provider's normal business or service hours, and
within the time schedules detailed in subsections (C) through (H) of this Section. The MCS
provider shall be considered in compliance by the Council/franchising authority if the standards
of service outlined in subsections (C) through (H) are met or exceeded at least 97.5 % of the time
Pun:15551_311871 B2588.0 A-27 09/27/94
over a calendar month. Conversely, the MCS provider shall be considered in major
non-compliance (absent force majeure or mutually scheduled appointments) if the standards of
service outlined in subsections (C) through (I) of this Section are not met or exceeded at least
97.5 % of the time over any four (4) calendar months within a calendar year, or any five (5)
months within a fifteen (15) month period.
B. Moreover, except in emergency situations, an MCS provider shall inform the
customer that there is a choice as to whether the service call is scheduled for the morning,
afternoon, or evening hours. If the service call has to be cancelled or rearranged by the MCS
provider, then the MCS provider shall make every effort to notify the customer as soon as
possible, and shall re -schedule the service call for a time within twenty-four (24) hours of the
cancellation. If the MCS provider cancels a scheduled service call without prior notification to
the subscriber, or fails to re -schedule the service call within forty-eight (48) hours of the
cancellation (except upon mutual agreement with the subscriber), then the MCS provider shall
credit the affected subscriber on the next available billing cycle or refund the subscriber within
sixty (60) days an amount equivalent to the amount charged by an MCS provider to a subscriber
for a normal service call, or where no such charge exists, then the amount equivalent to one (1)
month's charge for basic multi -channel service.
C. In the case of a service outage or a "blank" or "no -picture" situation at any given
level of billing or service (except for pay -per -view events), an MCS provider shall respond to,
and make repairs as are necessary to return the multi -channel service within six (6) hours from
the time the MCS provider first received notification of the "blank" or "no -picture" situation.
D. In the case of a signal or service interruption (such being defined as a visually
discernable degradation in picture or sound), an MCS provider shall make its best efforts to
respond and remedy the problem the same day, but in no case later than twenty-four (24) hours
or one (1) working day from the time the MCS provider first received notification of the signal
or service interruption.
E. In the case of a defective, improperly operating, or non -operating piece of
equipment, an MCS provider shall make its best efforts to respond and remedy the problem the
same day, but in no case will the response be later than twenty-four (24) hours or one (1)
working day, and shall the make repairs as are necessary to correct the problem within thirty-six
(36) hours from the time the MCS provider first received notification of the defective, improperly
operating, or non -operating piece of equipment.
F. In no case shall a subscriber's service request or inquiry go unresponded or
unattended to for more than twelve (12) hours from the time the MCS provider first received
notification of the service inquiry or request. Moreover, except in force majeure situations, all
requests and inquiries shall be handled or corrected within thirty-six (36) hours from the time the
MCS provider first received notification. If a cancellation of a service call occurs, then the MCS
provider shall re -schedule the call in a manner consistent with the guidelines expressed in
subsection (A) of this Section.
G. In case of a dispute concerning the precise time that the MCS provider received
notification, or the precise circumstances surrounding the MCS provider receiving the
rvBL:15551 311 s71 B2588.0 A-28 09/27/94
notification, or whether notification was received at all, the Council/franchising authority reserves
the right and authority to settle such a dispute.
H. The requirements in this Section are supplemental and in addition to any
requirements contained within the State Video Customer Service Act.
5.10.380 MCS Providers Required to Maintain Sufficient Repair Parts and
Sufficient Repair Personnel.
A. Except in case of force majeure, an MCS provider shall, at all times, have access
to, and be able to secure, sufficient maintenance and repair parts and equipment for the MCS
system, so that the MCS provider can respond to, and correct, all subscriber service interruptions
within the time periods specified in this ordinance.
B. Having access to, and being able to secure sufficient maintenance and repair parts
and equipment, is necessary to promptly restore a subscriber's multi -channel service, and avoid
delays caused by having to obtain needed parts and equipment.
C. Except in case of force majeure, an MCS provider shall have sufficient
maintenance and repair personnel, so that the MCS provider can respond to, and correct,
subscriber service interruptions within the time periods specified in this ordinance.
D. Notwithstanding the other requirements and provisions contained in this Section,
an MCS provider shall maintain at least one (1) service technician on call twenty-four (24) hours
per day.
5.10.390 New Installations; Connections --Regular, Promotional, Seasonal,
Short -Term, Pay -Per -View, and Menu -Driven; Re -Connections.
A. New installations, promotional, short-term, or seasonal connections,
re -connections, and upgrades of multi -channel service by an MCS provider shall be performed
and completed within five (5) days (excluding holidays) of a customer requesting such.
B. The provisions of subsection (A) of this Section shall not apply to pay -per -view or
menu -driven connections.
C. While an MCS provider may charge a customer for installing, connecting, or
re -connecting multi -channel service, such charge must be explained to, and approved by the
customer prior to the installation, connection, or re -connection.
D. In the case of a promotional or seasonal connection, any limitations, or restrictions
must be explained in printed form to the subscriber prior to the promotional, or seasonal
connection.
E. Downgrading a particular service level, or service cluster to a lower -priced or less
comprehensive service or cluster level shall not be considered an installation or connection to the
lower -priced or less comprehensive level of service unless it is necessary to physically adjust or
change the equipment at the subscriber's location.
rue►.:15551-3 1 187 1 B2588.0 A-29 09/27/94
5.10.400 Voluntary Disconnections --Including Requests for Downgrades.
A. At any time during business hours, a subscriber may request that a particular
service tier, service cluster, menu -driven program/service, premium channel, informational
service, or the entire multi -channel service be disconnected. Pay per view services may be
cancelled at any time prior to the program start.
B. Where provided by an MCS provider, a subscriber may request a downgrade
from a particular level of service to a less comprehensive level of service, or a less expensive
level of service.
C. From the date that a subscriber requests either a disconnection or downgrade, the
MCS provider shall have seventy-two (72) hours or three (3) service days, whichever is longer,
to disconnect or downgrade the service tier, pay channel, premium channel, informational
service, or entire multi -channel service. In the event that an MCS provider does not disconnect
or downgrade service within said period, a subscriber's obligation to pay for such service shall
cease, or in the case of a downgrade, a subscriber's obligation to pay for the more
comprehensive and/or higher priced service shall cease as of the end of such period.
D. For a service tier, service cluster, menu -driven service, premium channel or
informational service which is voluntarily disconnected, a subscriber shall pay a pro rata share of
the monthly rate for such service tier, service cluster, menu -driven service, premium channel or
informational service.
E. Once a valid connection to a pay -per -view event occurs, then the MCS provider
may collect the full advertised or quoted rate, should the customer then attempt to disconnect the
pay -per -view event.
F. For MCS providers classified as cable operators, any charge or billing imposed on
a subscriber as a result of a downgrade by such MCS providers, shall be no more than the
maximum permitted by FCC rules and regulations. For other MCS providers, the
Council/franchising authority reserves the right to approve any charge or billing that would be
imposed on a subscriber as a result of a downgrade in service.
G. If, however, an MCS provider's equipment is, or has been damaged by a
subscriber, prior to such disconnection, then the MCS provider may charge the subscriber the
entire cost of such damage, provided that the MCS provider notify the subscriber within thirty
(30) days of the disconnection. A subscriber shall not be required to pay for equipment failure,
if the circumstances fall within the normal wear and tear or acts of nature guidelines established
in this ordinance.
H. Any refund due a subscriber after voluntary disconnection and/or downgrade shall
be made within sixty (60) days after such disconnection.
I. In no event will this Section be viewed as abridging the rights and remedies
afforded by the subscriber complaint/inquiry resolution process outlined in this ordinance.
MBL:15551_311971 B2588.0 A-30 09/27/94
5.10.410 Protection of Subscriber Privacy.
An MCS provider shall abide by any, and all, subscriber privacy rules or regulations of
the Federal, or State governments.
5.10.420 Resolution of Complaints/Inquiries.
A. An MCS provider is required to develop a comprehensive complaint/inquiry
resolution policy which adheres to this ordinance, and any rules or regulations promulgated
hereto, and any applicable State law.
B. An MCS provider's complaint/inquiry resolution policy shall be reduced to
writing, and such policy shall be available upon request, to any person. In any event, a
subscriber shall receive notice of such policy in the manner that is prescribed by this ordinance,
and any State rules and regulations.
5.10.430 Policy With Respect to Continuity of Multi -Channel Service Provisions.
A. An MCS provider may not propose to abandon, withdraw, or cease to provide
multi -channel service to any or all subscribers within the City without the prior written consent of
the Council/franchising authority. Likewise, an MCS provider may not abandon, withdraw, or
cease to provide multi -channel service to any, or all, subscribers within the City without the prior
written consent of the Council/franchising authority.
B. If an MCS provider does so without such prior written consent, then such action
may be deemed a major violation of this ordinance, and the MCS provider may be fined and/or
punished in the manner prescribed by this ordinance (including where applicable, subject an MCS
provider to default and revocation of its franchise or license).
C. Prior to giving its written consent, the Council/franchising authority may adopt a
temporary set of rules and guidelines which are designed to decrease the likelihood that any
subscriber experiences an interruption in the receipt of multi -channel service. These temporary
rules and guidelines shall not exceed twelve (12) months unless a longer period is agreed to by
both the Council/franchising authority and the affected MCS provider. Moreover, these
temporary rules and guidelines shall not require an MCS provider to operate at a sustained
financial loss unless the arrangement is part of a court -approved or trustee -approved bankruptcy
or re -organization plan.
5.10.440 Continued Use of Individual Antennas Protected.
The City Council does not intend to prohibit the erection or continued use of individual
television antennas within the City so long as the individual television antennas conform to any,
and all, applicable zoning and/or land use regulations.
PUBL:15551_311871 B2588.0 A-31 09/27/94
5.10.450 Construction Schedule and Construction -Related Requirements.
In order to establish minimum uniform standards, any MCS provider shall adhere to the
following minimal construction schedule and construction -related requirements:
1. construct, install, maintain, and repair the multi -channel system in accordance
with this ordinance;
2. use streets and public ways, as set forth in this ordinance;
3. where applicable, remove franchise property from public streets, as set forth in
this ordinance;
4. adopt the construction standards, as set forth in this ordinance;
S. abide by, and act in strict accordance with, all current technical codes standard
and customary to the multi -channel industry, including construction, fire, safety, health, and
zoning codes that are adopted by the City, or the State, or the United States, as noted in this
ordinance; and
6. maintain all permits and licenses, as noted in this ordinance.
5.10.460 Construction of Good Quality.
During any phase of construction, installation, maintenance, and repair of the
multi -channel system, the MCS provider shall use materials of good and durable quality and all
such work shall be performed in a safe, thorough, and reliable manner.
5.10.470 Conditions on Use of Streets and Public Ways.
A. All wires, conduits, cable (coaxial, fiber, or functional equivalent), and other
property and facilities of an MCS provider shall be so located, constructed, installed, and
maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic
and travel upon the streets, rights -of -way, easements, and public ways of the City.
B. In the event an MCS provider's system creates a hazardous or unsafe condition or
an unreasonable interference with property, such MCS provider shall voluntarily, or upon the
request of the Council/franchising authority, remove or modify that part of the system to
eliminate such condition from the subject property.
C. An MCS provider shall not place equipment where it will interfere with the rights
of property owners or with gas, electric or telephone fixtures, or with water hydrants or mains,
or with wastewater lift stations, any traffic control system or any other service or facility that
benefits the City's or its residents' health, safety, or welfare.
D. An MCS provider, at either its own expense or that of a private contractor, shall
protect rights -of -way, easements, and support or temporarily disconnect or relocate in the same
street or other public way, any property of such MCS provider when necessitated by reason of:
mu15551_311871B2588.0 A-32 09/27/94
1. traffic conditions;
2. public safety;
3. temporary or permanent street closing;
4. street construction or re -surfacing;
5. a change or establishment of street grade;
6. installation of sewers, drains, water pipes, storm drains, lift stations, force mains,
power or signal lines, and any traffic control system; or
7. any improvement, construction or repair related to the City's or its residents
health safety, or welfare.
E. It shall be the responsibility of an MCS provider (acting alone or in conjunction
with another person) pursuant to state law requirements to locate and mark or otherwise visibly
indicate and alert others to the location of its underground cable (coaxial, fiber or functional
equivalent) before employees, agents, or independent contractors of any entity perform work in
the marked -off area.
F. An MCS provider shall, on the request of any person holding a building moving
permit, temporarily remove, raise or lower the cable wires to allow the moving of the building.
The expense of temporary removal shall be paid by the person requesting it, and such MCS
provider may require payment in advance. The affected MCS provider shall be given not less
than twenty-one (21) days notice of a contemplated move to arrange for temporary wire changes.
5.10.480 Franchised MCS Provider's Duty to Remove Franchised Properties
from the Public Streets.
A. This Section is applicable to any MCS provider required to maintain a franchise to
operate within the City.
B. Whenever the following occurs:
1. a franchised MCS provider ceases to operate all, or part, of the multi -channel
system for a continuous period of six (6) months;
2. a franchised MCS provider ceases and fails to construct the multi -channel system
outlined in the renewal franchise agreement, or an amended franchise agreement;
3. the Council/franchising authority elects not to renew the franchise pursuant to the
provisions set forth in this ordinance; or
4. the franchised MCS provider's franchise is revoked pursuant to the provisions set
forth in this ordinance;
PUBL:15551311871 B2588.0 A-33 09/27/94
Unless the City, or another MCS provider uses such multi -channel system in accordance
with any temporary continuity of service provisions, the affected franchised MCS provider shall
at its expense promptly remove its multi -channel system property, or any abandoned portion of
the system, from the streets, public ways, and private property located within the City.
C. If not removed voluntarily by a franchised MCS provider, then the
Council/franchising authority may notify such franchised MCS provider that should removal of
the property not be accomplished within two hundred seventy (270) days, or substantial progress
towards removal not be made within two hundred ten (210) days, the Council/franchising
authority may direct its officials or representatives to remove such franchised MCS provider's
system property at that franchised MCS provider's expense. The performance and/or
construction bond, irrevocable letter of credit, cash deposit, or full faith and credit guarantee
required as set forth in this ordinance shall be available to pay for such work.
D. If officials or representatives of the City remove a franchised MCS provider's
system property, and such franchised MCS provider does not claim the property within one
hundred twenty (120) days of its removal, then the City may take whatever steps are available
under State law to declare the property surplus, and sell it, with the proceeds of such sale (if
permitted by State law) going to the City.
E. When such franchised MCS provider removes its multi -channel system property
from the streets, public ways, and private property located within the City, the franchised MCS
provider shall, at its own expense, and in a manner approved by the Council/franchising
authority, replace and restore such public or private property to a condition comparable to that
which existed before the work causing the disturbance was done.
5.10.490 Construction Standards.
A. Methods of construction, installation, maintenance, and repair of any
multi -channel system shall comply with the most current editions of the National Electrical Safety
Code and the National Electric Code as affects the construction, installation, and maintenance of
electrical supply and communication lines and attachments and supports. To the extent that these
are inconsistent with other provisions of a franchise, or State, or local law, such State law shall
apply unless the State allows the local law to control.
B. All construction, installation, maintenance, and repair shall treat the aesthetics of
the property as a priority, shall not substantially affect the appearance or the integrity of the
structure, and shall not be installed on the bias across the property or side of a residence or other
structure without the property owner's permission.
C. All underground drops shall follow (to the greatest extent possible) property lines,
and cross property only at right angles, unless otherwise permitted by the property owner, or
required due to the physical characteristics of the subsurface, or required under City, County,
State, or Federal rules. Underground installations shall be constructed in accordance with the
specifications and requirements of the City and the National Electric Safety Code.
PUBL:isssi 311871B2588.0 A-34 09/27/94
construction bond, irrevocable letter of credit, cash deposit, or full faith and credit guarantee
required as set forth in this ordinance shall be available to pay for such work.
D. If officials or representatives of the City remove a franchised MCS provider's
system property, and such franchised MCS provider does not claim the property within one
hundred twenty (120) days of its removal, then the City may take whatever steps are available
under State law to declare the property surplus, and sell it, with the proceeds of such sale (if
permitted by State law) going to the City.
E. When such franchised MCS provider removes its multi -channel system property
from the streets, public ways, and private property located within the City, the franchised MCS
provider shall, at its own expense, and in a manner approved by the Council/franchising
authority, replace and restore such public or private property to a condition comparable to that
which existed before the work causing the disturbance was done.
5.10.490 Construction Standards.
A. Methods of construction, installation, maintenance, and repair of any
multi -channel system shall comply with the most current editions of the National Electrical Safety
Code and the National Electric Code as affects the construction, installation, and maintenance of
electrical supply and communication lines and attachments and supports. To the extent that these
are inconsistent with other provisions of a franchise, or State, or local law, such State law shall
apply unless the State allows the local law to control.
B. All construction, installation, maintenance, and repair shall treat the aesthetics of
the property as a priority, shall not substantially affect the appearance or the integrity of the
structure, and shall not be installed on the bias across the property or side of a residence or other
structure without the property owner's permission.
C. All underground drops shall follow (to the greatest extent possible) property lines,
and cross property only at right angles, unless otherwise permitted by the property owner, or
required due to the physical characteristics of the subsurface, or required under City, County,
State, or Federal rules. Underground installations shall be constructed in accordance with the
specifications and requirements of the City and the National Electric Safety Code.
5.10.500 Permits and Licenses.
An MCS provider shall obtain, at its own expense, all permits and licenses required by
local law, rule, regulation, or ordinance, and maintain the same, in full force and effect, for as
long as required by the City, Council/franchising authority or other appropriate governmental
entity or agency.
5.10.510 Technical and Performance Standards.
It shall be the responsibility of any MCS provider to comply with the most current FCC
technical standards.
PUBL:18406_1(RED:15551_2 To_15551_1)1871B2588.0 ,t1�j-35 09/12/94
5.10.520 Reservation of Right to Inspect Construction, Documents Related to
Construction, and Tests Related to Performance, Technical Integrity and Quality of Signal,
Preventive Maintenance, and Safety.
A. In order to verify that an MCS provider has constructed and maintained the
multi -channel system in the manner required by this ordinance, and conducted the various
performance, technical integrity (including cumulative leakage [CLI]), preventive maintenance,
and safety tests required by Federal, State, and local laws, the City and, where appropriate, the
Council/franchising authority reserves the right to inspect all facets of an MCS provider's
construction, as well as to inspect documents related to construction, and inspect tests results
related to performance, technical integrity, preventive maintenance, and safety.
B. The City shall pay for all of its costs associated with such an inspection, except
for those circumstances occasioned by an MCS provider's refusal to provide necessary
information (such as, schematic drawings, or as -built maps), or occasioned by the repeated
failure to construct, install, maintain, repair, rebuild, or upgrade, in the manner specified and
required by this ordinance, or where applicable, a franchise agreement. In such instances, the
MCS provider shall pay for such costs incurred by the City that are caused by the MCS
provider's refusal to supply necessary information, or repeated failure to abide by the rules.
5.10.530 Policy With Respect to Safety Requirements.
A. The Council/franchising authority requires that the MCS provider's construction,
operation, and maintenance of the multi -channel system meet certain threshold safety levels which
are designed to protect the public and lessen the likelihood of interruption of multi -channel
service.
B. Consequently, at a minimum, an MCS provider shall adopt the following safety
requirements:
1. emergency alert override activation in the manner set forth in this ordinance;
2. minimum standby power as noted in this ordinance;
3. implementing a periodic preventative maintenance program, as set forth in this
ordinance;
4. comply with, and abide by, all FCC rules and regulations concerning maximum
cumulative leakage index (CLI) limits; and
5. comply with, and abide by, any construction, safety, health, or fire codes, as
noted in this ordinance.
5.10.540 Provisions to Alert Subscribers in the Event of an Emergency; Standby
Power.
A. In order that subscribers may be alerted in the event of an impending, imminent
or actual, natural or man-made emergency, then all MCS providers shall ensure that the
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material degradation of the multi -channel system that would affect the citizens' health, safety, and
welfare, or negatively affect the quality of multi -channel services being provided.
B. Before the MCS provider implements such a program, it shall provide a copy of
such program to the Council/franchising authority.
C. Although not exhaustive, the following areas shall be included in a preventive
maintenance program, and subsequent report:
1. daily inspection, and adjustment if necessary, of the signal quality of each
channel;
2. daily scan, and adjustment if necessary, of carrier levels with spectrum analyzer;
3. daily logging of any, and all, adjustments made to the headend, antenna tower, or
distribution system;
4. daily monitoring, and logging, of signal leakage, and repair if necessary, to ensure
that the multi -channel system is within FCC allowed levels;
5. inspection of drops as an integral part of every service call, and schedule for
replacement, if necessary;
6. inspection and recordation of signal levels at the time of each service call;
7. weekly monitoring, and adjustment if necessary, of headend audio and video
carrier levels;
8. weekly monitoring, and adjustment if necessary, of headend videocipher AGC
levels;
9. weekly monitoring, and adjustment if necessary, of satellite receiver input carrier
noise;
10. monthly monitoring, and adjustment if necessary, of headend audio and video
modulation levels;
It. monthly performance measurements (and adjustment if necessary) (at a minimum
of 4 extremities) of the distribution system to include:
a) video and audio signal levels;
b) overall difference in signal level or response flatness;
c) hum modulation;
d) carrier:noise; and
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e) signal ingress;
12. monthly monitoring, and adjustment if necessary, of headend scrambler levels;
13. monthly testing, and repair if necessary, of the emergency alert override system;
14. monthly inspection, and repair if necessary, of 1/3 of all standby power supplies;
15. semi-annual monitoring, and adjustment if necessary, of headend radio frequency
(RF) input levels to off -air processors;
16. semi-annual inspections, and repair if necessary, of --
a) antenna tower;
b) any, and all, earth stations; and
c) buildings and fences;
17. semi-annual inspections, and repair and/or re -calibration if necessary, of all
in-house, and field test or measuring equipment;
18. semi-annual extremity tests (and adjustment if necessary) of the distribution system
to include:
a) cross modulation distortion;
b) composite second, and third order products; and
c) RF sweep response;
19. annual testing for determining cumulative leakage index (CLI);
20. annual extremity tests (and adjustment if necessary) of the distribution system to
include:
a) 24-hour signal level stability; and
b) channel response flatness; and
21. where required by local or State law, annual inspection and repair (if necessary)
of all MCS provider owned or leased vehicles.
D. Forty-five (45) days after each calendar quarter, an MCS provider shall notify the
Council/franchising authority of the preventive maintenance information available for that
calendar quarter, and that such information is available for inspection, examination, and review
by authorized personnel upon five (5) days notice.
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5.10.560 Construction, Fire, and Safety Codes.
A. An MCS provider shall construct, operate, maintain, repair, remove, replace, or
restore the multi -channel system in strict compliance with all current technical codes adopted by
the City, the State, or the United States.
B. The codes referred to are technical codes that are standard and customary to the
multi -channel industry including, but not limited to, construction, fire and safety, health, and
zoning codes.
5.10.570 Alternative User Charge.
A. This Section is applicable to any licensed but unfranchised MCS provider, and to
any MCS provider who has had its franchise ruled unconstitutional, unenforceable, or invalid.
For all franchised MCS providers the provisions concerning franchise fees shall be applicable.
B. Where not specifically prohibited by Federal or State law, and as an alternative to
the imposition of a franchise fee as set forth in this ordinance, the Council/franchising authority
may impose, extract, and collect, a charge from an affected MCS provider for the use by such
provider of the streets, rights -of -way, easements, and public ways of the City.
C. Such an alternative user charge shall be based on the value of the public
rights -of -way being used by the affected MCS provider. However, in no event, shall the
alternative user charge exceed five percent (5 %) of the affected MCS provider's gross revenue
for the reporting period.
D. An alternative user charge is adopted in order to receive fair compensation for the
affected MCS provider's use of the public streets and public ways if such compensation cannot be
obtained by imposing a flat percentage fee on such MCS provider's annual gross revenue.
However, an affected MCS provider may agree to an alternative charge that is based on a flat
percentage of gross revenue, as long as that charge does not exceed five percent (5 %) of an
affected MCS provider's annual gross revenue.
E. Also, recognizing that an alternative user charge may affect a franchised MCS
provider, please note, that the franchise agreement may contain express language which details a
different method or manner to handle a situation in which franchise fees as historically calculated
(as a percentage of gross revenue) are ruled unconstitutional, or unenforceable, in order to
protect, and preserve the City's source of revenue and compensation for the use of the public
rights -of -way.
F. It is expressly understood that a franchise fee and an alternative user charge will
not be imposed on the same MCS provider at the same time, for the same period of time.
G. An affected MCS provider shall at no time be charged or obligated to pay an
alternative user charge that exceeds five percent (5 %) of such provider's gross revenue (as
defined by this ordinance) for any particular reporting period. In the event that the alternative
user charge does exceed five percent (5 %) of gross revenue, then such alternative user charge
shall be reduced to reflect an amount not greater than the five percent (5 %) cap.
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H. An affected MCS provider shall pay twenty-five percent (25 %) of the alternative
user charge at the end of every three (3) months.
5.10.580 Franchise Required; Exception.
A. Except as provided in subsections (B) and (C) of this Section, no person, or MCS
provider shall be permitted to construct, operate or maintain a multi -channel system which
requires the laying or positioning or use of cable (coaxial, fiber or functional equivalent) across
the rights -of -way of the City, without having first obtained a MCS franchise which is then in
effect.
B. Unless required by Federal law, no franchise shall be required for either the City
or any local or municipal authority affiliated with it to operate as an MCS provider.
C. Where a person or MCS provider is required by the Council/franchising authority
to obtain a franchise, the Council/franchising authority shall notify the person or MCS provider,
in writing, within thirty (30) days of the Council/franchising authority's formal action.
D. After receipt of notification, the affected person or MCS provider shall have
ninety (90) days in which to submit an application or proposal as required by the
Council/franchising authority. The MCS provider's application will be processed in accordance
with applicable State or local law.
5.10.590 Authority to Grant Non -Exclusive Franchises.
A. Consistent with Section 621(a)(1) of the Cable Act (codified at 47 USC 541), the
Council/franchising authority may award one (1) or more non-exclusive multi -channel service
franchises within its geographical limits.
B. A franchised MCS provider shall be selected as part of a public proceeding and
hearing which affords due process to both the Council/franchising authority and the applicant,
and which is in accordance with any applicable Federal or State laws.
5.10.600 Franchise Agreement; Minimum Requirements.
A. For any MCS provider required to secure and maintain a franchise, such MCS
provider may not lay or use any cable (coaxial, fiber, or functional equivalent) until the franchise
agreement is fully executed and in effect.
B. A franchise agreement shall be sufficiently detailed to clearly delineate the rights
and duties of the parties concerned.
5.10.610 Extent of Grant of Franchise.
A. Upon an award of a franchise, in accordance with the terms of such franchise
agreement, an MCS provider required to obtain and maintain a franchise may construct, erect,
install, maintain, operate, repair, replace, remove, or restore a multi -channel system within the
geographical limits set forth in the franchise agreement.
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B. The franchised multi -channel system may be located in, upon,
along, across, over, and under the streets, rights -of -way, easements, and public ways of the City.
C. A franchised MCS provider shall be responsible for obtaining any required
easements for private property (including privately owned utility or street light poles).
D. A franchised MCS provider, through a separate pole or utility easement agreement
with an affected utility, may locate the multi -channel system on, or within, the property of such
utility company. This provision specifically includes MCS providers classified as cable
operators.
5.10.620 Term of Franchise.
A. The term of an initial or renewal MCS franchise shall not exceed fifteen (15)
years from the date that a franchise agreement is approved by the Council/franchising authority
(on behalf of the City), and executed by both the Mayor, and the affected MCS provider.
B. If an initial franchise or renewal franchise is for a period of nine (9) years or less,
then the Council/franchising authority shall set forth the reasons for granting the shorter
franchise, in the franchise agreement or elsewhere.
5.10.630 Initial Application for Franchise; Application Fee.
A. The Council/franchising authority may develop rules and regulations with respect
to the submission and processing of initial applications for a franchise. Such rules and
regulations shall primarily be aimed at determining the legal, financial, technical, and character
qualifications of the applicant for a franchise.
B. Unless prohibited by the State, an applicant shall pay an initial application fee
which shall be no greater than the administrative and consulting costs associated with processing
an initial application for a franchise. The total application fee must be paid, unless waived by
the Council/franchising authority. The total initial application fee must be paid (or waived) prior
to the Council/franchising authority's formal action on the applicant's request for a franchise.
C. An existing franchised MCS provider seeking a renewal MCS franchise shall not
be required to pay an application or renewal fee unless the MCS provider has previously agreed
to pay for such.
5.10.640 Franchise Fees.
A. Any franchised MCS provider (specifically including any MCS provider classified
as a cable operator) awarded a franchise or renewal franchise after the date this ordinance
becomes effective, shall pay to the City for the privilege and use of the streets, rights -of -way,
easements, and public ways, and other facilities of the City in the operation of the multi -channel
system, a sum not to exceed five percent (5 %) of the annual gross revenue of such franchised
MCS provider. A franchise fee may be based on subscriber and/or non -subscriber revenues.
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B. If the FCC, Congress or other governmental entity with authority over
multi -channel service ever allows a governmental entity to increase the franchise fee beyond five
percent (5 %), then that governmental entity shall have the authority to increase the franchise fee
to the maximum percentage allowable.
C. Franchised MCS providers shall pass through to subscribers the amount of any
decrease in a franchise fee.
D. A franchised MCS provider shall file with the Council/franchising authority,
within forty-five (45) days after the expiration of each of the franchised MCS provider's fiscal
quarters, a detailed revenue report clearly showing the franchise fee due for the preceding quarter
together with the bases of the calculations thereof. Such statement shall be certified by a certified
public accountant or officer of a franchised MCS provider attesting to the accuracy,
completeness, and veracity of the revenue figures. Such statement shall be in the form and
format determined by the Council/franchising authority and shall include revenue from whatever
source, directly or indirectly derived from, or allowed, or caused to be derived from, or
applicable to the operation of the multi -channel system, or the provision of any service by or
using the multi -channel system. Revenue will be reported by service category, type, and level
showing computations and using incremental billing rates for all sources, levels, tiers, clusters,
types of service and other revenue sources by kind and type.
E. Payment of the quarterly portion of the franchise fee shall be rendered to the
Council/franchising authority at the time the revenue report is filed.
F. In the event that payment is not made by the due date then such franchised MCS
provider may be declared in default of the franchise, and should the amount owed remain unpaid
for an additional sixty (60) days, then the franchise may be revoked, terminated, or cancelled as
noted elsewhere in this ordinance.
G. The Council/franchising authority reserves the right to audit a franchised MCS
provider's books, if the Council/franchising authority deems it necessary. If such audit discovers
an underpayment of franchise fees in an amount greater than one half of one percent (.5 %) of the
total franchise fee, then the affected franchised MCS provider shall reimburse the City for the
cost of such audit (unless such cost is waived by the Council/franchising authority). It is
specifically understood, that the right of audit and re -computation of any, and all, amounts paid
under a franchise fee, shall always be accorded to the Council/franchising authority.
H. If an audit, or other research, discovers that franchise fees have been either
underpaid or not paid for a period exceeding six (6) months from the original due date, then the
Council/franchising authority may seek full recovery of the underpaid or non -paid fees, plus
interest, not to exceed ten percent (10%) in the case of underpaid fees and fifteen percent (15%)
in the case of unpaid fees per year or the maximum allowable under State law (whichever is
lesser).
I. All annual reports due and pertaining to the payment of franchise fees, will be
certified by an officer of the franchised MCS provider, and will be provided in the form, format
and detail applicable to quarterly reports under subsection (D) above. Such provider shall
maintain records used in the preparation of said reports, to be produced in their originality and
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— totality upon request or demand by the Council/franchising authority. In the event such records
are requested by the Council/Franchising Authority, they shall be kept in a confidential manner
and shall, due to their proprietary financial nature, not be considered to be public records.
J. No acceptance of any payment shall be construed as a release of, or an accord, or
satisfaction of, any claim that the City might have for further or additional sums payable under
the terms of this ordinance, or for any other performance or obligation of a franchised MCS
provider hereunder.
K. Payments of compensation made by a franchised MCS provider to the City,
pursuant to the provisions of this ordinance, shall be considered in addition to, and exclusive of,
any and all authorized taxes, business license fees, other fees, other levies or assessments
presently in effect, or subsequently adopted.
L. A franchise fee does not include any items excluded by Section 622 (g) (2) (D) of
the Cable Act (codified at 47 USC 542 (g) (2) (D)).
M. Nothing in this Section shall be construed to limit the authority of the
Council/franchising authority to impose a fee or other assessment of any kind, on any person
(other than a franchised MCS provider) with respect to multi -channel service or other
programming or communications service provided by such person over a multi -channel system
for which charges are assessed to subscribers, but not received by a franchised MCS provider.
For purposes of illustration only, this subsection shall include the situation(s) where a premium
service directly bills a subscriber, or the franchised MCS provider acts as collection agent for a
premium service billing directly to a subscriber, or where a person leases a channel for
commercial use and sells advertising or goods on that channel, and receives the money directly or
through a third party.
N. For any twelve (12) month period, the fees paid by any person subject to
subsection (M) of this Section who provides any such multi -channel service shall not exceed five
percent (5 %) of such person's gross revenue, or such higher percentage as may be authorized by
the FCC, Congress, or other governmental entity derived in such period from the provision of
such service over the multi -channel system.
O. If at any time, the highest court of the nation, or the highest court of the State,
invalidates, voids, or rules as unconstitutional the concept of franchise fees, then the
Council/franchising authority may impose an alternative user charge on the franchised MCS
provider, as allowed in this ordinance.
P. In light of subsection (0) of this Section, the franchise agreement may contain
express language which permits a different method or manner for collection of franchise fees
should the applicable provision of the franchise agreement be ruled unconstitutional or
unenforceable, so that the City's source of revenue and compensation for the use of the public
right-of-way may be protected.
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5.10.650 Assignment or Transfer or Sale of Franchise.
A. There shall be no assignment of a franchised MCS provider's franchise, in whole
or in part except to an Affiliate, without the prior express written approval of the
Council/franchising authority.
B. Except as noted in subsection (L) of this Section, any assignment or transfer
without such prior written consent shall constitute a default of such franchise which may subject a
franchised MCS provider's franchise to revocation.
C. At least one hundred twenty (120) days before such a proposed assignment of the
franchised MCS provider's franchise is scheduled to become effective, the franchised MCS
provider shall petition in writing for the Council/franchising authority's written consent for such
a proposed assignment. It is specifically noted that the franchised MCS provider shall submit to
the Council/franchising authority (concurrently with submission of its written petition) an FCC
394 Form (or successor form) together with (1) any other information or documentation required
by the State or Federal government (including the FCC), (2) the information referenced in
subsections (G) and (H) of this Section, and (3) information regarding the financial ability and
stability of the proposed assignee with respect to being able to perform all obligations of the
existing franchise.
D. The Council/franchising authority shall not unreasonably withhold its consent to
such an assignment. However, in evaluating the petition for assignment, transfer, or sale, the
Council/franchising authority may, at its sole discretion, undertake a technical inspection and
audit of the system to determine whether the franchised multi -channel system complies with all
applicable technical and safety codes, as well as complies with, and operates within the
construction, and construction -related practices set forth in this ordinance. Also, the technical
inspection and audit is designed to determine the technical integrity and stability of the present
multi -channel system.
E. The Council/franchising authority shall have the right to undertake the technical
inspection no sooner than fifteen (15) days after receiving the petition for consent --and the
Council/franchising authority shall receive the technical inspection and audit report at least thirty
(30) days before the proposed multi -channel system assignment, transfer or sale is to occur.
F. Should the Council/franchising authority determine (as a result of the technical
inspection and audit) that the multi -channel system does not comply with federal, state, or local
standards, then the current franchised MCS provider shall be provided with an opportunity to
correct or cure the area of non-compliance or operational deficiency. In the alternative, the
Council/franchising authority may work with both the current and proposed MCS providers to
cure the area of non-compliance or operational deficiency.
G. If the franchised MCS provider has not previously supplied the
Council/franchising authority with certain operational reports and data, then the franchised MCS
provider shall submit the following reports at the time it submits its FCC Form 394:
1. FCC Form 395-A relating to equal employment opportunity, and fair contracting
policies;
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2. FCC Form 320 concerning cumulative leakage index (CLI);
3. periodic revenue statements in the form and format referenced to in this
ordinance;
4. preventive maintenance reports in the form and degree referenced to in this
ordinance; and
5. subscriber logs in the form and format referenced to in this ordinance.
H. At the time the franchised MCS provider submits its written petition, it shall also
submit a copy of the completed sales agreement, or a functionally equivalent instrument, between
the franchised MCS provider and proposed assignee or transferee or buyer, so that the
Council/franchising authority may discover the assumption of obligations by the franchised MCS
provider and proposed assignee or transferee or buyer with respect to the multi -channel system.
In lieu of the sales agreement, the Council/franchising authority may accept an attested summary
of obligations assumed by the above -referenced parties. The Council/franchising authority may
request additional information unless the disclosure of such information is expressly prohibited by
law.
I. Before an assignment is approved by the Council/franchising authority, the
proposed assignee, transferee, or buyer shall execute an affidavit, acknowledging that it has read,
— understood, and will abide by both this ordinance, and the applicable franchise agreement.
J. In the event of any approved assignment the assignee shall assume all obligations
and liabilities of the former franchised MCS provider relating to the franchise, unless specifically
relieved by Federal or State law, or unless specifically relieved by the Council/franchising
authority at the time the assignment is approved.
K. Consistent with both the Cable Act, and the FCC implementing rules, the
Council/franchising authority shall have one hundred twenty (120) days from the date of
submission of a completed FCC Form 394, together with all required exhibits, data, and reports
to act upon the petition for consent of assignment, transfer, or sale. The Council/franchising
authority may either approve such a petition for consent, or, for cause, not approve such a
petition for consent. However, the Council/franchising authority may not make the approval
conditional or pre -condition the approval on completing some act.
L. Consistent with both the Cable Act, and the FCC implementing rules, should the
Council/franchising authority fail to act upon such petition for consent within the one hundred
twenty (120) day time -frame, such petition will be deemed granted unless the Council/franchising
authority, and the petitioner otherwise agree to an extension of time.
M. Should the Council/franchising authority (for cause) not approve a petition for
consent, then the MCS provider may immediately submit another petition or an amended petition
for consent. In such a situation, then the one hundred twenty (120) day time -frame begins to run
anew. In such a situation, the procedural and substantive provisions of both federal and local law
must again be followed and met.
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5.10.660 Default of Franchise; Revocation, Termination or Cancellation of
Franchise.
A. When any event, act or omission (on the part of the franchised MCS provider)
occurs which represents a violation of an integral provision of this ordinance, or compromises the
corporate character, or legal, financial or technical integrity and/or stability of the multi -channel
system or the franchised MCS provider to such a degree that the interests of the customers are
negatively affected, then such event, act or omission shall be considered a material breach of this
ordinance. Under such circumstances, the Council/franchising authority shall notify the affected
MCS provider in writing, of the specific breach, and direct such franchised MCS provider to
comply with all such provisions of its franchise agreement, or this ordinance.
B. For illustrative purposes only, the events, acts and omissions include, but are not
limited to: bankruptcy, insolvency, failure to pay taxes or franchise fees (including the alternative
user charge if applicable), failure to receive written Council/franchising authority approval for an
assignment, or failure to abide by the integral terms and conditions of the franchise agreement, or
integral provisions of this ordinance, including those involving matters of customer service and
consumer protection needs as expressed by subscribers. For purposes of this Section, "integral"
means a provision which either 1) affects the ability of the customer to receive multi -channel
service, or 2) affects the ability of the Council/franchising authority to receive compensation for
the use of its right-of-ways, or 3) affects the ability of the Council/franchising authority to
evaluate an MCS provider's performance in the technical, financial, and legal aspects of the
multi -channel system, as well as matters involving customer service practices and issues of
consumer protection.
C. Where a franchised MCS provider satisfactorily corrects any of the enumerated
conditions, within sixty (60) days, then in no event shall the enumerated condition be weighed
against such franchised MCS provider in any subsequent review of franchise performance.
D. A copy of such notice of material breach shall be mailed to the surety on the
performance bond, unless otherwise directed by State law.
E. Within seventy-five (75) days, after such written notice of breach is mailed to a
franchised MCS provider, the Council/franchising authority shall conduct a public hearing on the
matter (unless State law requires a different procedure, in which event the State procedure shall
control).
F. The Council/franchising authority shall provide reasonable written notice to a
franchised MCS provider, and to the surety, of the time and place of said public hearing in a
manner consistent with either State law, or approved by the Council/franchising authority.
G. At the time of the hearing, the affected franchised MCS provider may present
information and evidence on the subject for which the notice was given under (A) above. If the
situation has been resolved, or steps are being taken to resolve the situation, then the franchised
MCS provider shall present the information at the hearing. The franchised MCS provider may
cross-examine witnesses and may be represented by counsel at the hearing.
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H. If the affected franchised MCS provider fails to attend the hearing, and has not
requested a continuance of the hearing, then such franchised MCS provider shall be deemed to
have waived its right to a further continuation of the matter, and may be declared in default of
the franchise agreement.
I. After the public hearing, the Council/franchising authority may determine the
franchised MCS provider to be in compliance and dismiss the matter, or may determine that the
MCS provider has cured any non-compliance and thereby dismiss the matter. However, the
Council/franchising authority may determine that an ordinance violation exists and remains
uncured. Consequently, upon a finding that the MCS provider violated a material ordinance
provision, or failed to cure an outstanding ordinance violation, the Council/franchising authority
may direct the affected franchised MCS provider to take corrective action within a specified
period of time, or may declare such franchised MCS provider in default of the franchise
agreement, and thereafter, may revoke, terminate, or cancel the franchise, unless the franchised
MCS provider presents sufficient mitigating circumstances.
J. If the Council/franchising authority directs corrective action to take place within a
specified time or declares such franchised MCS provider in default of the franchise agreement,
then that declaration shall be reduced to writing, and the notice of corrective action or default
shall be mailed to such franchised MCS provider, and surety, within twenty-one (21) days of the
Council/franchising authority's action.
-- K. If within sixty (60) days, the affected franchised MCS provider, or surety, does
not take significant action to rectify the breach, or submit a plan detailing how the affected MCS
provider will eliminate the breach, then the Council/franchising authority shall revoke such MCS
provider's franchise, and shall notify the affected franchised MCS provider and surety forthwith,
unless there are mitigating circumstances.
L. The Council/franchising authority reserves the right to assess any charges incurred
(including costs for consultants, witnesses, and hearing preparation) in a default and/or revocation
proceeding to the franchised MCS provider.
5.10.670 Performance Evaluations.
A. The Council/franchising authority is authorized to design a performance evaluation
procedure which periodically monitors compliance of the franchised MCS provider with the terms
and conditions of both this ordinance and any applicable franchise agreement. Moreover, the
Council/franchising authority may periodically review, and examine whether a franchised MCS
provider's financial, technical, legal, and character qualifications, and its record of meeting
community and subscriber needs as particularly relate to matters of customer service practices
and consumer protection issues, continue to meet required operational, maintenance, and
performance levels in order to ensure the uninterrupted and acceptable provision of
multi -channel services. Such performance evaluations may be conducted every three (3) years
during the franchise term.
B. If as a result of the evaluation, the Council/franchising authority determines that
the franchised MCS provider has not complied with a provision of this ordinance, then the
Council/franchising authority must give the franchised MCS provider an opportunity to either
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correct the area of non-compliance, or submit documentation or supporting data that resolves or
explains the area of non-compliance.
C. If the franchised MCS provider fails to correct or resolve an area of
non-compliance, then such failure may be treated as a material violation of this ordinance. It
should be noted however, that a franchised MCS provider may successfully resolve an area of
non-compliance by submitting documentation that (1) the area of non-compliance was a
"technical" breach, or (2) a force majeure situation.
5.10.680 Specific Additional Public, Educational, and Governmental Rules for
MCS Providers Classified as Cable Operators.
A. To the extent permitted by law, the Council/franchising authority adopts the
following:
1. At the time of an initial or renewal application for an MCS franchise for a cable
system, an MCS provider classified as a cable operator shall provide the City at its own expense:
and
a) one dedicated twelve (12) hour non-commercial public access channel; and
b) one dedicated twelve (12) hour non-commercial educational access channel;
c) one dedicated twelve (12) hour non-commercial governmental channel.
B. The requirements detailed in subsection (A) of this Section do not require either
separate channels or a specific channel for the City --rather only, sufficient channel capacity to
accommodate the minimal requirements for PEG access, so long as there is no substantial or
on -going scheduling conflict due to lack of capacity or available channel time. In the event there
develops such a conflict, an MCS provider shall provide suitable capacity to alleviate such
conflict within sixty (60) days notification.
C. Both the Council/franchising authority and the affected MCS provider shall review
use after every twenty-four (24) months, including the percentage of use of every PEG channel.
At the end of each twenty-four (24) month period, the Council/franchising authority shall
evaluate the response and actual use of such channels. If, after any twenty-four (24) month
period, the percentage of use for any required PEG channel drops below twenty-five percent
(25%) of the total time allocated, then the required number of hours may be reduced to a number
that most closely approximates the average hours of use per day.
D. If, at any time, seventy-five percent (75 %) of the total time allocated for any
required PEG channel is consistently used five (5) days a week for a period of three (3) months,
then the cable operator shall provide an additional PEG channel.
E. An MCS provider classified as a cable operator may be required to provide
mobile, portable, and stationary equipment dedicated for PEG access, together with the aid of
technical and production assistance provided by the cable operator. A cable operator shall
provide equipment that can store programs for delayed cablecasting.
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5.10.690 Equal Employment Opportunity and Fair Contracting Policies of MCS
Providers.
MCS providers shall comply with any, and all, Federal, State, and local laws as such
relate to equal employment opportunity (EEO) and fair contracting policy within the multi-
channel service industry including those classified as cable operators.
5.10.700 Rates and Charges.
A. To the extent permitted by Federal law (including applicable FCC rules and
regulations), the Council/franchising authority is authorized to, and may choose to, regulate the
rates for basic multi -channel service, which includes basic cable service and those charges (such
as converter rental fees) associated with the provision of multi -channel service. In the event that
the Council/franchising authority chooses to regulate rates for basic service, the
Council/franchising authority shall follow any, and all, applicable FCC rules, regulations, and
procedures concerning rate regulation.
B. Consistent with Federal law, before the Council/franchising authority exercises its
right to impose, approve, or deny the rates and charges for multi -channel service, the
Council/franchising authority must conduct a public hearing in which to allow an affected MCS
provider or any other interested party an opportunity to express its view concerning said
proposed rate regulation.
C. To the extent permitted by both Federal law and FCC implementing rules and
regulations, the Council/franchising authority may require submission of back-up documentation
or data to support or explain rate information submitted by an MCS provider. Moreover, if the
MCS provider does not timely submit such supplemental documentation or data, then, to the
extent permitted by FCC rules and regulations, the time frames for the Council/franchising
authority to make its decision are suspended for the period of non -submission.
5.10.710 Multiple Franchised MCS Providers Operating Within the City.
With respect to multiple franchised MCS providers operating with the jurisdictional limits
of the City, the Council/franchising authority shall abide by and comply with any, and all
applicable State rules and regulations concerning the award of such multiple franchises, and the
comparability of franchise provisions.
5.10.720 Miscellaneous Provisions --Tampering and Unauthorized Reception of
Certain Services.
A. Consistent with the Cable Act, no person shall intercept or receive, or assist in
intercepting or receiving any communications service offered over a multi -channel system, unless
specifically authorized to do so by an MCS provider, or as may be specifically authorized by
law.
B. For the purpose of this Section, the term "assist in intercepting or receiving" shall
include the manufacture or distribution of equipment intended by the manufacturer or distributor
PUBL:15551 31 ls71 B2588.0 A-49 09/27/94
(as the case may be) for the unauthorized reception of multi -channel service as referenced in
subsection (A) of this Section.
C. Without securing permission from an MCS provider, or making payment to an
MCS provider, then no person shall be authorized to make any connection, whether physically,
electrically, acoustically, inductively, or otherwise, with any part of an authorized or franchised
multi -channel system for the purpose of receiving or intercepting, or assisting others to receive or
intercept any cable service provided lawfully with by the MCS provider.
D. No person shall be authorized to willfully tamper with, remove, or damage any
cable wires, equipment, or facilities used for the distribution of multi -channel services.
However, this provision shall not restrict any rights or responsibilities that are afforded to
subscribers under the home wiring provisions of the Cable Act, and the FCC's implementing
rules.
E. Any, and all, MCS providers are encouraged to work with the Council/franchising
authority in developing and implementing a plan designed to control and eliminate the
unauthorized reception of certain multi -channel services within the City.
5.10.730 Periodic Regulatory Review by Council/Franchising Authority.
A. Between two hundred ten and thirty days prior to the fifth, tenth, and fifteenth
anniversary dates of the effective date of this ordinance, the Council/franchising authority shall
conduct a periodic review and examination of this entire MCS provider ordinance.
B. In conducting such a periodic review and examination of the MCS provider
ordinance, the Council/franchising authority shall, among other things, consider the following:
1. whether one or more provisions have been superseded, clarified, or modified by
Federal or State law;
2. whether one or more provisions have been superseded, clarified, or modified by a
subsequent binding judicial decision;
3. whether one or more provisions are unnecessary or ineffective in light of
emerging and evolving technologies;
4. whether new or different trends relating to MCS providers warrant or necessitate
additional safeguards for customers and/or subscribers; and
5. whether the economic and customer forces associated with competition have
lessened the need for one or more provisions.
C. If after such a periodic review and examination of the MCS provider ordinance,
the Council/franchising authority determines that one or more provisions of the MCS provider
ordinance should be amended, repealed, revised, clarified, or deleted, then the
Council/franchising authority may take whatever measures necessary (to the extent permitted by
Puat:15551_3 1 187 1 B2588.0 A-50 09/27/94
law) in order to accomplish same. It is noted that where warranted and in the best interests of
the City, the Council/franchising authority may repeal the entire MCS provider ordinance.
D. Notwithstanding the provisions of subsection (A) of this Section, the
Council/Franchising Authority may at any time, and in any manner (to the extent permitted by
Federal, State, and local law) amend, add, repeal, and/or delete one or more provisions of this
ordinance.
PUBL:15551311871 B2588.0 A-51 09/27/94