9/8/81 Cable TV Method of Franchising Const,Oper,Main Amendment Sect 5Ba
ORDINANCE AMENDING "AN ORDINANCE PROVIDING FOR THE METHOD OF
FRANCHISING THE CONSTRUCTION, OPERATION AND MAINTENANCE OF A CABLE,
TELEVISION SYSTEM IN THE COUNTY OF HARNETT, STATE OF NORTH CAROLINA"
WHEREAS, This Board adopted on the 1st day of June, 1981, an
ordinance entitled, "An Ordinance Providing for the Method of
Franchising the Construction, Operation and Maintenance of a Cable
Television System in the County of Harnett, State of North Carolina ";
and
WHEREAS, The Board is of the opinion that certain amendments are
necessary to the clear and efficient working of the Ordinance.
NOW THEREFORE, BE IT ORDAINED as follows:
1. That Section 5D 3 of the ordinance be amended to read as
follows:
�3. If applicant had prepared by a certified public
accountant, an audit for the fiscal year next preceding the
application date, a copy of that audit. In any event an income
statement and balance sheet for the fiscal quarter next preceding
the application which may be either audited or unaudited,' which
shall show the applicant's financial status and its financial
ability to complete the construction of the proposed CATV system
and to provide the CATV service. Any additional financial
information_ which applicant feels would further evidence his
ability to construct the proposed system and provide CATV service
may also be submitted. Information with respect to financial
projections of the proposed system, including methods of
financing,_ shall be submitted as part of the application. All
financial and ownership information relating to the applicant
submitted in compliance with this ordinance shall be confidential
and shall not be regarded as public information to the extent
provided by law.
2. That Section 7C of the\Ordinance be amended to read as
follows:
C. Expiration of Franchise. Within three years
of the expiration of the. term. of the franchise and
subject to approval by the Board of Commissioners, the
franchisee may negotiate renewal of its franchise for
an additional period not inconsistent with FCC rules
and regulations: -.
The franchisee shall notify the County in
writing not less than one (1) year in advance of the
expiration date of its desire to renew or not to renew
the franchise. The County may propose certain
franchise modifications to the franchisee and make any
given renewal contingent upon acceptance of such
modifications. Renewal shall be preceded by a public
hearing held at feast thirty (30) days in advance of
decision by the Board of Commissioners. A renewal may
be granted not more than two (2) years prior to the
expiration of any existing term. The Board of
Commissioners may determine whether or not the
franchisee has performed satisfactorily its obligations
under the franchise by reviewing the following:
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• t
1. Technical developments and performances
of the system;
2. Programming;
3. Other services offered;
4. Cost of Service;
5. Compliance with any requirement
ordinance or in FCC regulations;
Annual and other reports made to
or the FCC;
7. Extension of service; and
8. Other matters of concern.
0
in the
the County
In the event the current franchisee is
determined by the Board of Commissioners to have
performed unsatisfactorily, new applicants shall be
sought and evaluated by the County Manager and Board of
Commissioners and a franchise award may be made
according to application and award procedures set forth
herein.
3. That Section 7D(6) of the ordinance be amended to read as
follows:
6. Failure to have full service available as set
forth in franchisee's application and in Section 8B
hereof, provided the period may be extended by the
Board of Commissioners under the same circumstances set
forth in subsection above.
The franchisee shall have sixty (60) days to
remedy defects following written notice by the County
Manager to the franchisee of such a defect. If any
defect continues beyond the sixty (60) days (or any
extension thereof granted by the Board of
Commissioners) without written proof that corrective
action has been taken or is being actively and
expeditiously pursued, the Board of Commissioners shall
call a public hearing on the termination of the
franchise. Immediately following the public hearing,
the Board of Commissioners may, by resolution, declare
that the franchise be terminated. At least ten (10)
days prior to the Board of Commissioners' meeting at
which the public hearing will be held, the County
Manager shall cause to be served upon the franchisee a
written notice of the public hearing on the question of
termination. The notice shall state the time and place
of the meeting.
Should the County revoke the franchise, new
applicants shall be sought and evaluated by the County
Manager and Board of Commissioners and a franchise
award may be made according to application and award
procedures set forth herein.
4. That Section 7I of the original ordinance be deleted and
that_ Section 7J be redesignated as.Section 7I.
5. That Section 8B of the ordinance be amended to read as
follows:
B. Service. Within the first year after the
effective date of the franchise the franchisee agrees
to make available basic CATV service to all residents
of the County within the basic service area as set
forth in franchisee's application. Thereafter,
franchisee shall provide service in all areas of the
County contiguous to the Franchisee's then existing
cables where the average density of residential units
is equal to or greater than 30 residential units per
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cable mile, provided that the percentage of the
franchise area to be served where there are 30
residential units per cable mile shall not be less
than:
1.
508
at
the
end
of
2
years.
2.
708
at
the
end
of
3
years.
3.
808
at
the
end
of
4
years.
4.
1008
at
the
end
of
5
years.
Franchisee shall extend cable television
service to those areas with an average density of at
least 30 occuppied residential units per mile of cable.
In addition, Franchisee shall extend cable television
service to areas of lesser density, upon written
request of any five (5) or more customers living within
one -half mile from each other as follows: Franchisee
shall determine the gross revenue that it would receive
should franchisee aerially construct its cable system
and extend cable television service to such customers
assuming the requesting individual subscribed to the
service. Franchisee shall also determine the costs of
the requested construction. Franchisee shall also
determine what would be its gross revenue were there
30 occupied dwellings per mile of cable and assuming
that potential subscribers became franchisee's
customers at a.rate equal to its system wide
penetration rate within the County. Franchisee shall
determine his gross annual yield on investment under
both the former and the latter situations. Franchisee
shall pay as its portion of the costs of extension an
amount which would give it the same gross annual yield
on investment in the former situation as it would have
had in the latter situation. The balance of the costs
of construction shall be advanced, pro rata, prior to
construction commencing, by the requesting customers.
In addition, the requesting parties shall agree to pay
for the service for a period of two years. For two (2)
years subsequent to completion of extension (or until
there are 30 occupied dwellings per mile of cable along
such extension), said prorata shares shall be
recalculated as additional customers along said
extension subscribe to Franchisee's system. Said
additional customers shall pay their prorata share of
the subscriber service extension costs, and customers
originally having made such payments shall receive a
refund equal to the excess of their original prorata
subscriber extension costs payment over and
recalculated prorata share together with any prior
refund. At the end of said two (2) years period,
payments for subscribers service extension costs
remaining in the Franchisee's possession should be
credited to its capital plant account.
6. That Section 9C of the ordinance be amended to read as
follows:
C. Adjustment to Rates. Initial rates and
charges for basic sources and for installation and
disconnect shall be fixed in the Franchise application.
Thereafter, the County or the franchisee may request
rate adjustments at any time. After a public hearing
affording due notice to the Franchisee and other
interested persons, the Board of Commissioners may
adjust rates. (Public Hearing advertisement to be once
per week in a newspaper of general circulation in the
County for two weeks preceding hearing). The criterion
to determine whether rates adjustments shall be
permitted are the same as those currently set forth in
Chapter 162 of the North Carolina General Statutes for
rate adjustment hearings related to rate adjustments
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for public utilities other than motor carriers and
certain water and sewer utilities. Franchisee may
appeal the decision of the Board to the Courts as
permitted by law.
However, the Franchisee may increase or
decrease its rates at any time, without prior Board
approval, provided that no increase has been made in
the preceding six months and provided that the
annualized rate of increase within a given twelve month
period shall not exceed the average annual rate of
increase over the preceding twelve months in the
"Consumer Price Index for all Urban Consumers &. U. S.
City Average Other Utilities and Public Services
(1967 -100) as Published by the United States Department
of Labor, Bureau of Labor Statistics." (In the event
that at any time The United States Department of -Labor
begins publishing a Consumer Price Index on the annual
cost adjustments in Cable T.V. costs in particular then
that index and its base year shall be used in lieu of
the index for Other Utilities and Public Services).
The Franchisee shall notify the County in writing at
least ninety days in advance of the effective date of
any proposed rate increase within the limits set forth
above. The County may then challenge the increase and
schedule meetings, hearings, request additional
information, or take whatever action it deems
appropriate. If no such action is taken within 60 days
of receipt of original written notice by the
County, then the increase will automatically take
effect.
Except as set forth in the preceding
paragraph rates shall not be changed without Board
approval, except that nothing in this provision shall
prohibit the reduction or waiving of charges in
conjunction with promotional campaign for the purpose
of attracting subscribers.
7. That Section 10 of the ordinance be amended to read as
follows:
Section 10. PAYMENT TO THE COUNTY.
As compensation for the authorization granted
herein and in consideration for permission to use the
easements which the County controls for the
construction, operation, and maintenance of a CATV
system within the County, the Franchisee shall pay to
the County quarterly on or before the first day of
July, October, January, and April for the preceding
quarter an amount equal to three (3) percent of the
gross revenues. This payment shall be in addition to
any other fees or payments made to the County by the
franchisee, such as pole rental, business licenses and
other fees not based on gross revenues. Payment shall
be accompanied by a certified annual report showing the
basis for the computation and such other relevant:-facts-
as,may be required by the County. No acceptance of any
payment shall be construed as an accord that the amount
paid is, in fact, the correct amount, nor shall such
acceptance of payment be construed as a release of any
claim the County may have for further or additional
sums payable under the provisions of this Ordinance.
All amounts paid shall be subject to recomputation by
the County within sixty (60) days of the receipt of the
franchise annual report. This time limitation shall
not apply should the franchisee provide false or
erroneous information. In the event that recomputation
results in additional revenue to be paid to the County,
such amount shall be subject to an interest charge at
1
the highest rate permitted by law. Nothing in this
provision shall limit franchisee's liability to pay
other local taxes and charges.
8. That Section 11E of the ordinance be amended to read as
follows:
E. Faithful Performance Bond. The franchisee
shall, concurrently with its acceptance of this
franchise, file with the County Manager and at all
times thereafter maintain in full force and effect for
the term of this franchise or any renewal thereof, at
franchisee's sole expense, a corporate surety bond with
a responsible company licensed to do do business in
North Carolina and approved by the County, in the
amount of five (5) percent of the anticipated cost of
construction of the proposed CATV system for the
unincorporated areas of the County, renewable annually,
and conditioned upon the faithful performance of the
franchisee, and in accordance with the provisions of
this Ordinance and upon the further condition that in
the event franchisee shall fail to comply with any one
or more of the provisions of the franchise, there shall
be recoverable jointly and severally from the principal
and surety of such bond any damages or loss suffered by
the County as a result thereof, including the full
amount of any compensation, indemnification, or cost of
removal or abandonment or any property of the
franchisee as prescribed hereby, plus a reasonable
allowance for attorneys' fees and costs, up to the full
amount of the bond, said condition to be a continuing
obligation for the duration of the franchise and any
renewal thereof and thereafter until the franchisee has
liquidated all of its obligations with the County that
may have arisen from the acceptance of this franchise
or renewal by the franchisee or from its exercise of
any privileges or rights herein granted. The bond
shall provide that at least thirty (30) days prior
written notice of intention not to renew, cancellation,
or material change be given to the County by filing
same with the County Manager. Said required
performance bond shall be reduced to $2,000 once the
franchisee has connected sufficient energized cable to
serve the areas required to be served by Section 8B
hereof. Failure to keep a performance bond in�force at
all times as herein provided shall constitute an event
of default.
9. That Section 13C of the ordinance be amended to
read as follows:
C. Pole Use. The franchisee is obligated to obtain pole
space and other facilities from the towns of Lillington, Angier,
Erwin, Coats, any utility companies, and other lawful users at
its own expenses and costs and copies of all pole use agreements
in whatever form as to be filed with the County Manager. In the
event of termination for failure to construct-tfieyCATV- System -or --
expiration of the.franchise, franchisee is to relinquish all
rights to pole use immediately and enter into whatever agreements
and execute whatever documents may be necessary to accomplish
such relinquishment. In the event of termination of franchise
once the system is operating, franchisee is to relinquish all
rights to pole use after a reasonable time has elapsed for
franchisee to attempt to sell the system; however, during such
time franchisee shall diligently be attempting to find a buyer.
Such reasonable time, unless otherwise agreed to by the County,
shall be nine months. This provision may be enforced by
appropriate equitable remedy from a court of competent
jurisdiction as set forth in N.C.G.S. 153A -123. Such equitable
relief includes, but is not limited to, injunctions and orders of
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abatement and upon refusal to comply, franchisee may be cited for
contempt.
10. That Section 14M of the ordinance be amended to read as
follows:
M. Quarterly Reports. The franchisee shall file
with the County Manager on a quarterly basis
construction reports until the system is completed.
11. That Section 14N of the ordinance be amended to read as
follows:
N. Annual Reports. If written request is made
by the County Manager, the following reports shall be
filed by the franchisee with the County Manager
annually, no later than February 1, except where
otherwise provided:
1. A summary of complaints received during
the preceding calendar year showing nature of the
complaint, area of the County, disposition and
complaints subsequent to disposition;
2. A total facilities report together with
a current system map showing the location and total
miles of plant and equipment installed and /or operating
at the close of the preceding calendar year;
3. A map of system;
4. One copy of each type of agreement
currently offered to subscribers and to users;
5. A complete set of current rules and
regulations of the operator incorporating the latest
amendments filed with the County;
In addition the franchisee shall file a
complete financial audit statement including a
statement of income to be certified by a public
accountant to be submitted no later than ninety (90)
days after the end of the preceding fiscal year of the
franchisee and such reports on other topics as the
Board of Commissioners may direct.
6. A complete financial audit statement
including a statement of income to be certified by a
public accountant to be submitted no later than ninety
(90) days after the end of the preceding fiscal year of
the franchisee.
7. Reports on other topics as the Board of
Commissioners may direct.
12. That Section 15A should be deleted from the original
ordinance and the following redesignations be made within Section 15
of the ordinance:
15B of the original ordinance should be
redesignated as 15A.
15C of the original ordinance should be
redesignated as 15B.
15D of the original ordinance should be
redesignated as 15C.
15E of the original ordinance should be
redesignated as 15D.
MM.
Adopted this day of dtf., i 1981.
Board of Commissioners for
Approved as to form
Edward H. McCormick, County
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